Developments In Equal Pay Litigation - 2022 Update

6 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP have pointed to such situations as tending to disprove the existence of discrimination if, for example, plaintiff was paid more than other comparators of the opposite sex, or if other members of plaintiff’s sex were paid more than plaintiff and members of the opposite sex. 31 This question, whether an equal pay plaintiff may establish a prima facie by comparing themselves to just one comparator, seems like a straightforward legal issue. But it has given rise to many conflicting decisions among different courts and different circuits. For example, In O’Reilly v. Daugherty Systems, Inc. , 32 the District Court for the Eastern District of Missouri had to pick through inconsistent case law on this point just within its own circuit. The plaintiff argued she had established her prima facie case because she had identified at least one male comparator who was paid more than her. 33 The court first took note of apparently inconsistent decisions by the Eighth Circuit on this point. In Hutchins v. International Brotherhood of Teamsters , 34 the Eighth Circuit upheld a decision that found a prima facie case where the evidence showed that plaintiff was paid less than twelve male employees, but which also showed that plaintiff was paid more than eight comparable males, and that five other comparable females were paid higher salaries than their male peers. 35 On the other hand, in Sowell v. Alumina Ceramics, Inc. , 36 the Eighth Circuit found that a plaintiff failed to establish a prima facie case under Title VII where the evidence showed that she was paid the same as, or more than, at least some males in the same position. 37 Relying on the sheer weight of authority, and without trying to resolve the conflict directly, the court found that the Eighth Circuit has continued to reach decisions in line with Sowell , and that “district courts in this circuit have repeatedly found that plaintiffs fail to establish a prima facie case when the evidence supports that the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more.” 38 The court concluded that the plaintiff could not base her prima facie case on one comparator: “[Plaintiff] admitted that 10 male employees were either paid less than she or did not perform equal work. Given that alleged comparators that either were paid less did or did not perform equal work outnumber by a ten-to-one margin the lone alleged comparator who was paid more for equal work, the Court concludes that [plaintiff] fails to establish a prima facie EPA claim.” 39 But in Eisenhauer v. Culinary Institute of America , 40 an exhaustively reasoned decision that confronted the issue directly, the District Court for the Southern District of New York came to a different conclusion. The plaintiff in that case had identified only a single relevant comparator to establish her claim under the EPA and the New York Equal Pay Law. The employer argued that the plaintiff could not rely on a single comparator to establish her prima facie case, especially since there were other comparable males who made less than her and other females who made more than other males. 41 Both sides relied on the same Second Circuit case in support of their positions, Lavin-McEleney v. Marist College. 42 The court examined the reasoning in that case and concluded: “ Lavin-McEleney , as well as the discussions from the Fourth Circuit cited by the Second Circuit, show that a plaintiff may identify a single male comparator at the initial stage of the case, as Plaintiff has done here, but can later introduce additional data when addressing the 31 See, e.g., Jones v. Jefferson City Pub. Sch. , No. 2:18-cv-4054, 2019 WL 1118557, at *2 (W.D. Mo. Mar. 11, 2019) (holding that plaintiff’s admission that both male and female teachers were paid more than him was fatal to his claim because “if sex-based discrimination is not the reason for disparity in pay, the disparity cannot form the basis of a claim under the Equal Pay Act”). 32 O’Reilly v. Daugherty Sys., Inc. , No. 4:18-cv-01283 SRC, 2021 WL 4504426 (E.D. Mo. Sept. 30, 2021). 33 Id. at *4. 34 Hutchins v. Int'l Bhd. of Teamsters, 177 F.3d 1076 (8th Cir. 1999). 35 O’Reilly , 2021 WL 4504426, at *5; see also Euerle-Wehle v. United Parcel Serv., Inc. , 181 F.3d 898, 901 (8th Cir. 1999). 36 Sowell v. Alumina Ceramics, Inc. , 251 F.3d 678, 684 (8th Cir. 2001). 37 O’Reilly , 2021 WL 4504426, at *5. 38 Id. (citing Evans v. Autozone Stores, Inc. , No. 05-cv-1086, 2008 WL 697752, at *10 (W.D. Ark. Mar. 13, 2008); Garrard v. First Step, Inc. , No. 1:14-cv-1033, 2015 WL 2248217, at *2 (W.D. Ark. May 13, 2015); Peniska v. CJ Foods Inc. , No. 8:19-cv-277, 2021 WL 24729 (D. Neb. Jan. 4, 2021)). 39 Id. at *6. 40 Eisenhauer v. Culinary Inst. of Am. , No. 19-cv-10933 (PED), 2021 WL 5112625 (S.D.N.Y. Nov. 3, 2021). 41 Id. at *4. 42 Lavin-McEleney v. Marist Coll. , 239 F.3d 476 (2d Cir. 2001).