Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 23 when making salary placement determinations, depending on the sex of the applicant or employee.” 174 Conditional certification was denied with respect to the teacher plaintiffs, however, because they had not submitted any evidence to support their claim for collective relief and relied solely upon the allegations in the complaint. 175 “Teacher Plaintiffs do not support their claims with anything more than the averments in the Third Amended Complaint. . . . Teacher Plaintiffs' claims are unsupported by affidavits or other evidence showing personal knowledge, identifiable facts, or a legal connection that would indicate hearing their cases together with those of the Elementary School Assistant Principal and Technology Specialist Plaintiffs would promote judicial efficiency.” 176 Similarly, in De Block v. Speedway LLC , 177 the District Court for the Eastern District of Pennsylvania conditionally certified a collective action on the strength of just a few declarations and policy documents. In that case, a female general manager sought to represent all female general managers, who she alleged were paid less than her male counterparts. The plaintiff had presented as evidence, among other things, her own deposition testimony and sworn declarations from five present or former female general managers, in addition to a few company forms, including the Compensation Manual. 178 The court held that those documents were sufficient at the lenient conditional certification stage to meet the modest factual showing necessary to establish that individuals employed as general managers performed equal jobs: “Plaintiff has shown sufficient facts for a conditional finding that salaried Speedway general managers are similarly situated with regards to the allegations, both by having similar duties and responsibilities across Speedway stores and by being subject to a common compensation policy.” 179 The crux of the matter, however, is whether a plaintiff can establish a common policy that led to the alleged EPA violations. If an employer can marshal enough evidence of its own to show that no such common policy exists, then certification can be defeated, even at the conditional certification stage. For example, in Winks v. Virginia Department of Transportation , 180 an Architect/Engineer for the Virginia Department of Transportation alleged she was paid less than male employees, and sought to conditionally certify a collective action of the approximately 60 Architect/Engineers out of approximately 400 who are women. Among other things, the plaintiff argued that the employer requested prior pay history and prior work history on its application, which served to perpetuate the practice of paying female employees less than male employees. 181 The court rejected plaintiff’s bases for conditional certification, holding that “[w]ith over fifty-three different sub-categories, the employees in the Architect/Engineer I position have significant differences in crucial details like day-to-day responsibilities and skill requirements,” and noting that the employer “maintains that it considers thirteen factors when considering an appropriate salary for each individual plaintiff,” that it “uses a market-based pay system to ensure that salaries are competitive in each locality,” and that “[e]ach local [employer] office determines a salary range that is competitive and individualized to the person and the position.” 182 The Court concluded that “[t]he decentralized and individualized nature of pay determinations alone is sufficient to demonstrate the absence of a common policy implemented throughout all of [employer’s] offices.” 183 Moreover, the court pointed to the recent decision in Abe v. Virginia Department of Environmental Quality , wherein the Fourth Circuit held that the use of salary 174 Id. at *4. 175 Id . at *4-5. 176 Id. at 5. 177 De Block v. Speedway LLC , No. 20-cv-824, 2021 WL 4818310 (E.D. Pa. Oct. 15, 2021). 178 Id. at *2. 179 Id. The court rejected the employer’s argument that plaintiff could not have met her burden because it applied a facially neutral compensation policy, which it argued gave it a presumption that plaintiff must overcome. The court rejected this argument, holding that objection went to the merits of plaintiff’s case and was not appropriately argued in opposition to conditional certification. Id. at *3. 180 Winks v. Va. Dep’t of Transp. , No. 3:20-cv-420-HEH, 2021 WL 2482680 (E.D. Va. June 17, 2021). 181 Id. at *1. 182 Id. at *2-3. 183 Id. at *3.