# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 19, 2013 *

Decided April 19, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 12

‐ 3679

MICHELLE EVA McDONALD,

Plaintiff

‐ Appellant,

v.

VILLAGE OF PALATINE, ILLINOIS,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 08 C 5435

Charles R. Norgle,

Judge

.

O R D E R

Michelle McDonald sued the Village of Palatine, Illinois, her former employer,

claiming sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of

1964, see 42 U.S.C. §§ 2000e

‐ 2(a)(1), 2000e

‐ 3(a), and wage discrimination in violation of the

Equal Pay Act, see 29 U.S.C. § 206(d). The district court dismissed the Title VII claims as NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and record. See F ED

. R. A PP

. P.

34(a)(2)(C).No. 12

‐ 3679 Page 2

untimely and granted summary judgment to Palatine on the Equal Pay Act claim.

McDonald appeals and we affirm the judgment.

We recount the evidence in the light most favorable to McDonald. In January 2004

Palatine hired her as an “Inspector I, Step 1” in its Community Services Department. That

department employs three types of inspectors: Inspector I, Inspector II, and Sanitarian. As

an Inspector I, McDonald checked residential properties for compliance with Palatine’s

rental licensing code. An Inspector II has the additional duties of examining new

construction and reviewing building plans. Sanitarians primarily conduct health and

sanitation inspections of restaurants, swimming pools, and special events.

In February 2006 McDonald submitted a request to Palatine under the Illinois

Freedom of Information Act for the name, title, salary, and dates of employment for each

person employed in the Community Services Department during 2005. After requesting

from McDonald a seven

‐ day extension to answer her request, Palatine sent her the

department’s payroll register for 2005.

During the twenty

‐ eight months that McDonald worked for Palatine, she received

two merit

‐ based “step increases” and two cost

‐ of

‐ living increases. By the time she resigned

on May 1, 2006, she was an Inspector I, Step 3. Her last day of work was May 12. That same

month she filed a charge of discrimination with the Equal Employment Opportunity

Commission claiming sex discrimination, harassment, retaliation, and a violation of the

Equal Pay Act. She received her right

‐ to

‐ sue letter from the EEOC on July 27, 2006.

More than two years later, on September 23, 2008, McDonald filed this suit against

Palatine, alleging that she had been harassed, discriminated against, retaliated against, and

paid less than her male coworkers. On Palatine’s motion the district court properly

dismissed McDonald’s claims under Title VII as untimely, since she filed her complaint

more than 90 days after receiving her right

‐ to

‐ sue letter. See 42 U.S.C. § 2000e

‐ 5(f)(1); Lee v.

Cook County

, 635 F.3d 969, 971 (7th Cir. 2011). We have nothing to add on that issue.

The litigation proceeded on the Equal Pay Act claim. Palatine moved for summary

judgment, principally arguing that this claim, too, was untimely. The Equal Pay Act

includes alternative statutes of limitations—three years if the violation was willful and two

years for any other violation, see 29 U.S.C. § 255(a)—and Palatine argued that McDonald

lacked evidence of a willful violation and had filed her complaint more than two years after

receiving her last paycheck. Palatine also contended that McDonald lacked evidence that

she was paid less than any similarly situated male employee: Her pay rate, like everyone’s

in the Community Services Department, was dictated by a regulated pay plan, and any

male employee who earned a higher salary either had more experience or seniority.No. 12

‐ 3679 Page 3

McDonald responded by arguing that she should get the benefit of the three

‐ year

limitations period, not because Palatine had engaged in a willful violation of the Equal Pay

Act, but because, she insisted, the defendant was slow in meeting her FOIA request and did

not even give her records covering 2006. She also identified six potential comparators:

Brandon Allen, Robert Garcia, Allendro Roberts, Frank Cerny, Christopher Fish, and Erik

Moyer. Palatine replied with evidence that the last three had quit working for the

Community Services Department more than three years before McDonald filed suit.

See Snider v. Belvidere Twp.

, 216 F.3d 616, 618–19 (7th Cir. 2000) (concluding that female

employee’s claims under Equal Pay Act and Title VII that she was paid less than similarly

situated male employee accrued when male left his job). And the others, Palatine argued, all

held the higher position of Sanitarian, which had different eligibility criteria and job

responsibilities than an Inspector I position. McDonald did not submit an affidavit or

otherwise dispute Palatine’s evidence, instead merely asserting that she had performed

most of the same duties as these men regardless of job title.

In granting Palatine’s motion, the district court concluded that McDonald lacked

evidence of a willful violation and so her claim is barred by the two

‐ year statute of

limitations. McDonald moved for reconsideration and tried to submit “new” evidence: a

check received on September 11, 2006, from an insurance company reimbursing her for an

$8 premium overpayment. This check, according to McDonald, was her “last paycheck”

from Palatine, and so her Equal Pay Act claim was timely even with the two

‐ year statute of

limitations. (McDonald based her argument on the theory that, as some courts have

concluded, the statute of limitations for the Equal Pay Act begins to run when the plaintiff

receives her last regular paycheck. See Ikossi

‐ Anastasiou v. Bd. of Supervisors of La. State Univ.

,

579 F.3d 546, 553 (5th Cir. 2009); O’Donnell v. Vencor

, Inc.

, 465 F.3d 1063, 1068 (9th Cir. 2006);

Pollis v. New Sch. for Soc. Research

, 132 F.3d 115, 119 (2d Cir. 1997)). The court denied the

motion, not only because McDonald received the check more than two years before she filed

suit, but also because she possessed it when she opposed Palatine’s motion for summary

judgment and thus it was not “new.”

On appeal McDonald remains focused on the $8 reimbursement check. That check,

she argues, established a material dispute about whether she sued within the two

‐ year time

limit. It did not. Not only did the district court properly refuse to accept the late submission,

but a refund of an insurance premium is not a paycheck. And even if it were, McDonald did

not file her complaint until 2 years and 12 days after receiving that check. McDonald also

argues that Palatine willfully violated the Act by not correcting the alleged pay imbalance

after receiving her FOIA request, which, she asserts, put the defendant on notice that it was

paying her less than her male coworkers. See E.E.O.C. v. Madison Cmty. Unit Sch. Dist. No.

12

, 818 F.2d 577, 585 (7th Cir. 1987) (explaining that violation of Equal Pay Act is willful if

defendant knew it was violating law or was indifferent to that possibility). But the FOIANo. 12

‐ 3679 Page 4

request said nothing about gender or disparate wages, and so it does not evidence that

Palatine knew about McDonald’s belief that she was being paid less than her male

coworkers.

Moreover, even if the claim were not barred by the statute of limitations, McDonald

did not show that Palatine paid its male employees more money “‘for equal work requiring

substantially similar skill, effort and responsibilities.’” Cullen v. Ind. Univ. Bd. of Trs.

, 338

F.3d 693, 698 (7th Cir. 2003) (quoting Stopka v. Alliance of Am. Insurers

, 141 F.3d 681, 685 (7th

Cir. 1998)); see 29 U.S.C. § 206(d)(1). Her comparisons to Cerny, Fish, and Moyer are

untimely: The cause of action comparing her pay to theirs accrued when they left their

respective positions in the Community Services Department, see Snider

, 216 F.3d at 618–19,

which occurred more than three years before she filed suit. The remaining three potential

comparators—Allen, Garcia, and Roberts—were Sanitarians. Although McDonald asserts

that she did the “same work” as they did, she failed to provide an affidavit or any other

evidence at summary judgment to substantiate that assertion. Thus it is undisputed that

unlike McDonald, who performed residential inspections, Allen, Garcia, and Roberts had

the substantially different responsibilities of conducting health and sanitation inspections at

restaurants, swimming pools, and special events. See Merillat v. Metal Spinners, Inc.

, 470 F.3d

685, 695 (7th Cir. 2006); Cullen

, 338 F.3d at 698. Sanitarians are required to be Licensed

Environmental Health Practitioners under Illinois law, see 225 ILCS 37/10, 37/15; the three

men but not McDonald had this license, which makes even her assertion that she was doing

the same work wholly implausible. She was not paid less for the same job; she was paid less

for a job with fewer responsibilities and educational requirements. See Sims

‐ Fingers v. City of

Indianapolis

, 493 F.3d 768, 771–72 (7th Cir. 2007).

We have examined the other arguments raised by McDonald and conclude that none

has merit.

AFFIRMED.