©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 19 concluded that, “a reasonable juror could not find that [plaintiff] engaged in work that was substantially similar to that performed by her alleged comparators.”137 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.,138 a Contract Administrator at a research organization alleged 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.”139 However, in Badgerow v. REJ Properties, Inc.,140 the Fifth Circuit held that plaintiff had failed to point to evidence that her job circumstances were “nearly identical” to her proffered comparators.141 “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.”142 Same Duties; Different Levels of Responsibility. Sometimes courts will look to employees’ different levels of responsibility or expectations to determine they perform different jobs, even where their job duties are the same or similar. This can be the case, for example, when one employee is part-time and another is full-time, or where one is temporary and the other is permanent.143 In Martley v. City of Basehor,144 for example, a male City Administrator alleged he had been discriminated against when his employer paid more to his female successor. Although plaintiff and his comparator worked at the same 137 Id. at 693. 138 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. 139 Id. at *12. 140 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 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). 141 Id. at 617. 142 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”). 143 For an example of differences between temporary and permanent employees, see, e.g., Mayorga v. Marsden Bldg. Maint., LLC, No. 4:20-cv-00371, 2022 WL 887234 (S.D. Iowa Feb. 24, 2022) (holding that a temporary employee hired as a general cleaner, whose job duties included “sweeping, mopping, dusting, vacuuming, restocking restrooms, and trash disposal,” had not established a prima facie case by comparing herself to a permanent employee: “The record reflects that Plaintiff's pay was determined by factors other than sex: she was a temporary employee and not fully trained”); see also Santiago v. Meyer Tool Inc., No. 1:19-cv-032, 2022 WL 3908954 (S.D. Ohio Aug. 30, 2022) (rejecting plaintiff’s argument that male comparators did equal work from the simple fact that they would sometimes fill in for her when she was not at work: “The question is what skills, effort, and responsibility the male machinists possessed to perform their position,” and, “Plaintiff provides no specific evidence of the male machinists’ skills, efforts and responsibilities, and, thus, the Court is unable to make an overall comparison between Plaintiff and the comparators”). 144 Martley v. Basehor, No. 2:19-cv-02138-HLT, 2022 WL 16714127 (D. Kan. Nov. 4, 2022).
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