Developments In Equal Pay Litigation - 2022 Update

54 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP Financial Officer. 464 The employer argued that those positions were too geographically separate from plaintiff’s position and therefore not within the same “establishment” as defined by the EPA. However, the court held that plaintiff had alleged sufficient facts at the pleading stage to allow the case to proceed based on those comparators. The court noted that “[t]he foreign comparators all appear to be members of [employer’s] leadership team,” who reported directly to plaintiff and other centralized high-level officers. The court concluded that “[i]t is thus improbable that foreign [employer] personnel, instead of, say, . . . the Head of Human Resources for Global Technology and Operations, would have been responsible for the Head of Asia IT's specific salary.” 465 Courts are often quick to stress that extending an EPA claim beyond a single establishment is the exception rather than the rule, and it requires the existence of “unusual circumstances” that tie together a larger group of employees under some centralized decision making scheme. For example, in Winks v. Virginia Department of Transportation , 466 an employee of a state agency alleged that she was paid less than male employees for the same work. The agency argued that those comparators did not work in the same establishment as the plaintiff, which would prevent her from establishing a prima facie case of wage discrimination. 467 The court found that there were no “unusual circumstances” that would justify expanding the usual definition of an establishment as a distinct physical place of business because the agency’s nine regional districts operated independently from its central office with respect to whom to hire and what to pay: “The districts , not the Central Office, control the duties and assignments of the NPDES Coordinators on a daily basis. Each district functions as a largely independent unit within VDOT, making its own decisions with only high-level oversight from the Central Office. In scenarios with similar facts, courts have repeatedly found that regional offices could not constitute a combined single establishment.” 468 It can also be important that, unlike the EPA, there is no “establishment” requirement for plaintiffs proceeding under Title VII. In Lindsley v. TRT Holdings , 469 the Fifth Circuit reversed and remanded a decision granting summary judgment on behalf of an employer. The district court held that Directors from other locations of the same hotel chain are not part of the same “establishment” where plaintiff worked, meaning that none of those Directors were proper comparators for purposes of analyzing her discrimination claim. 470 464 Id. at *5. 465 Id. See also Vasser v. Mapco Express, LLC , No. 3:20-cv-00665, 2021 WL 2661136, at *3 (M.D. Tenn. June 29, 2021) (holding that plaintiffs had adequately alleged that a large chain of gas stations and convenience stores were a single establishment under the EPA because “Plaintiffs allege that [employer’ has ‘a rigid top down, hierarchical corporate structure,’ with a ‘top down wage policy.’ . . . These allegations are sufficient for an initial finding of a ‘single establishment’ at the motion to dismiss stage”); O’Reilly v. Daugherty Sys., Inc. , No. 4:18-cv-1283 SRC, 2020 WL 1557174 (E.D. Mo. Mar. 31, 2020) (authorizing collective action notice to be sent to all female employees in two job categories in multiple offices across the country on the strength of the plaintiffs’ allegations that employees “were all subject to the same compensation policies and practices, which the two owners of the company implemented for all employees regardless of job title, salary grade, or geographic location”). 466 Winks v. Va. Dep’t of Transp. , No. 3:20-cv-420-HEH, 2021 WL 5614764 (E.D. Va. Nov. 30, 2021). 467 Id. at *3. 468 Id. at *4 (emphasis in original). 469 Lindsley v. TRT Holdings , Inc. , 984 F.3d 460, 464 (5th Cir. 2021). In that case, a hotel Food and Beverage Director alleged that she was paid less than other Food and Beverage Directors who worked at different outposts of the same hotel chain in different cities in Texas. 470 Lindsley v. TRT Holdings , No. 3:17-cv-2942-X, 2019 WL 6467256, at *1 (N.D. Tex. Dec. 2, 2019). The district court acknowledged that there exist some unusual circumstances in which multiple physical locations can count as a single establishment, but held that those situations were not present in this case. In particular, the district court held that the hotel chain’s corporate headquarters’ influence over its member locations was limited. Id. at *6. The evidence demonstrated that officers from individual hotel locations have a say in determining the salaries of their own Food and Beverage Directors. Id. In particular, the evidence showed that the last person plaintiff interviewed with for the job was someone from the hotel location where she was eventually employed, rather than someone from corporate, and that person gave her the offer even though it went against a corporate employee’s recommendation. Id. To the district court, this demonstrated that individual hotel locations had significant autonomy in employment decisions. The district court concluded, “[plaintiff] has failed to show that a single establishment encompasses more than [the Corpus Christi hotel location where plaintiff worked]. Consequently, none of the Food and Beverage Directors from other [hotel chain] locations are eligible pay comparators for [plaintiff’s] equal pay act claim.” Id.