Developments In Equal Pay Litigation - 2022 Update

18 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP Courts’ tendency to look beneath formal job classifications cuts both ways; plaintiffs can sometimes use this to show they performed equal work to comparators in a more advanced pay grade or level. For example, in Gallaway v. Rand Corp. , 144 a Contract Administrator at a research organization alleged that she was paid less than male Contract Administrators in her same department even though she was employed at the second level of a four-level system, but compared herself to male employees in the third level. The Court concluded that a reasonable jury could find that she performed equal work as her male comparators because “[t]here is evidence that she performed the same duties and required the same substantive level of supervision as the CA IIIs in the same department where [comparators] worked, and she handled a case load heavier than all CAs in the department.” 145 However, in Badgerow v. REJ Properties, Inc. , 146 the Fifth Circuit held that plaintiff had failed to point to evidence that her job circumstances were “nearly identical” to her proffered comparators. 147 “Because [plaintiff] points us to no evidence of how her job duties compared to the senior AFAs’ initial job duties, she cannot use the alleged disparity between her salary and the senior AFAs’ starting salaries to further her wage discrimination claim.” 148 Often, there is no way to categorize or divine an overarching explanation for why some jobs are held to be equal, but others are not. In one recent example, Dass v. City University of New York , 149 the District Court for the Southern District of New York dismissed an EPA complaint because its allegations of other forms of discrimination undercut plaintiff’s claim that she was “similarly situated” to other employees who did not suffer such discrimination. The plaintiff’s complaint was self-defeating because it acknowledged that the plaintiff, an Athletic Director, performed tasks and responsibilities outside the scope of an Athletic Director’s responsibilities and had a smaller staff than other Athletic Directors. The court concluded that “Plaintiff's claim cannot proceed on these bare allegations of general job descriptions and her belief that other Athletic Directors were ‘similarly situated,’ especially given the specific factual allegations indicating that Plaintiff's position, and job responsibilities, were unique.” 150 144 Gallaway v. Rand Corp. , No. 2:18-cv-01379-RJC, 2020 WL 1984312 (W.D. Pa. Apr. 27, 2020). The employer maintained four levels of Contract Administrators. The four levels had the same job description but were supposed to differ in terms of the level of complexity of the work and the amount of supervision required, as well as the prerequisites for levels of education and years of work experience. Id. at *2. The employer introduced evidence that showed that there were at least three female Contract Administrators at the third level who earned more than Plaintiff based on their experience and the increased responsibilities of that level, and that no Contract Administrator at the second level earned more than Plaintiff. Id. at *11. However, the Contract Administrator Team Lead testified that plaintiff performed the same duties and required the same level of supervision as third level Contract Administrators. Statistics also verified that plaintiff handled the most awards and the highest aggregate total of grant money of all Contract Administrators. Id. at *12. 145 Id. at *12. 146 Badgerow v. REJ Props., Inc. , 974 F.3d 610 (5th Cir. 2020). In that case, a female financial advisor working at a franchise financial advisory firm alleged that she was paid less than other male assistant financial advisors. She was paid on a salary draw plus commission basis, meaning that she had to repay her salary draw by deducting it from commissions earned. She alleged that other male assistant financial advisors were paid on a salary plus commission basis, meaning that they were able to keep their salary on top of their commissions. The court granted summary judgment in favor of the employer, however, because plaintiff’s comparators all had significantly more seniority than plaintiff and had significantly larger books of business than plaintiff, who was new to the business. Moreover, those comparators to whom plaintiff was most similar had, in fact, been paid on the same salary draw plus commission basis as plaintiff. Badgerow v. REJ Props., Inc. , 383 F. Supp. 3d 648, 664 (E.D. La. 2019). 147 Id. at 617. 148 Id. See also Wilson v. Wilkie , No. 2:18-cv-515, 2020 WL 2128613, at *8 (S.D. Ohio May 5, 2020) (finding that a Recreation Assistant paid at a GS-5 level of the General Schedule of federal government salaries failed to show that he performed substantially equal work to employees serving in the same position but at the GS-6 level: “Plaintiff's engaging veterans in informal games and conversation is not substantially equal to the structured therapies provided by the GS-6s, who used their prior experience as nursing assistants to monitor veterans’ cognitive and physical limitations and work with the Recreation Therapists to modify the veterans’ care plans accordingly”). 149 Dass v. City Univ. of N.Y. , No. 18-cv-11325 (VSB), 2020 WL 1922689 (S.D.N.Y. Apr. 21, 2020). In that case, a female Athletic Director of a community college alleged that she was paid substantially less than other Athletic Directors in the same University system. Id. at *1. The Court held that her allegations were insufficient, noting that “Plaintiff's allegations reveal that all of the other Athletic Directors referenced in the complaint worked at different colleges in the CUNY system, which has twenty-five different educational institutions,” and that she “does not allege any facts suggesting that her position, experience, skills, and responsibilities were substantially equal to those of the male Athletic Directors at these different CUNY schools, or that she performed equal work.” Id. at *6. 150 Id. at *7.