20 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP job, plaintiff worked in a part-time capacity while his comparator/successor was full-time. The plaintiff also worked as the Police Chief while serving part-time as the City Administrator, and the evidence showed that his first responsibility was to be the Police Chief, and he was only serving temporarily as the City Administrator until a new full-time Administrator could be hired.145 And although the duties and responsibilities of the City Administrator did not change from plaintiff’s tenure to his successor’s tenure, the scope of the work and expectations of plaintiff were different due to the fact that he was also serving as Police Chief.146 The court held that this was sufficient to establish that the positions were not equal: “although the job description for City Administrator did not change from [plaintiff] to [comparator], the expectations for the job did change, along with the effort required, and it changed because [plaintiff] worked the job part-time and [comparator] worked it full-time.”147 Similarly, in Presnell v. Sharp Electronics Corp.,148 a General Sales Manager (“GSM”) alleged that she was discriminated against with respect to pay, among other things, pointing to five male GSMs as comparators. The court first found that there was one compensation plan for all GSMs.149 For at least some of the years at issue, the plaintiff was paid more than all but one of the other male GSMs. And the one who made more money was given additional compensation for continuing to directly supervise sales employees after the employer did not hire a Sales Manager to replace him when he became a GSM. Plaintiff, on the other hand, did not retain any direct responsibility over sales employees. But she did retain direct responsibility over account managers (not a direct sales position), which she argued made her level of responsibility comparable to the comparator GSM.150 The court disagreed, noting the high bar required of EPA plaintiffs to show equal work: “ the Fourth Circuit has specifically held that the EPA requires that the two comparators have “virtually identical” / “substantially equal” jobs.”151 By that standard, the extra responsibilities undertaken by plaintiff’s comparator made their jobs unequal, and was also sufficient to establish the employer’s “factor other than sex” defense. The court concluded: “even if [employer] should have paid [plaintiff] some extra money because of her additional responsibility for ‘enterprise account managers,’ that fact is irrelevant to the clear conclusion that [comparator’s] and [plaintiff’s] jobs were meaningfully different and thus not ‘equal’ under the EPA.”152 Same Job; Different Time Period or Circumstances. Because the evaluation of “equal” or “similar” work is so fact-specific and often difficult to prove, plaintiffs often attempt to rely on various proxies to establish that requirement. One shortcut that is sometimes successful is to compare plaintiff’s pay with a predecessor who held the same position. This will often be sufficient to establish equality of work, unless there have been changes in duties or levels of responsibility. In Kling v. Montgomery County, Maryland,153 for example, the court even held that an EPA plaintiff can establish a prima facie case by comparing her 145 Id. at *6. 146 Id. at *8. 147 Id. 148 Presnell v. Sharp Elecs. Corp., No. 5:21-cv-00107-KDB-DCK, 2022 WL 17683126 (W.D.N.C. Dec. 14, 2022). 149 Id. at *7. 150 Id. 151 Id. 152 Id. (emphasis in original). See also Miller v. Sam Hous. State Univ., No. H-15-cv-2824, 2019 WL 4758357 (S.D. Tex. Sept. 30, 2019), which held that a tenure-track Assistant Professor had failed to establish her job responsibilities were substantially similar to her chosen comparator, another Assistant Professor in the same field, because her comparator had elevated job responsibilities and was a licensed psychologist with clinical supervisory responsibilities. Id. The university showed that during the time that plaintiff did not have that license, it was required to devote extra resources to assist her, such as assigning a licensed psychologist to help supervise her students. Id. The district court concluded: “[b]ecause [comparator] did not require those extra resources in supervising his students, their work was not equal.” Id. That decision was reversed in 2021, however, and even reassigned to a different district court judge, after the Fifth Circuit called into question the comments and actions of the district court throughout the course of the litigation, holding that “the [district court’s] discovery restrictions suffocated any chance for [plaintiff] fairly to present her claims.” Miller v. Sam Hous. State Univ., 986 F.3d 880, 892 (5th Cir. 2021). 153 Kling v. Montgomery Cnty., Md., 324 F. Supp. 3d 582 (D. Md. 2018). In this case, a “Hispanic Liaison” for the Montgomery County Police Department requested a reclassification of her position to a higher pay grade, pointing to a male county employee who she alleged held a similar position at a higher pay grade. Id. at 588. After the county pointed out that the male comparator’s current position included significant contract monitoring, training, and other responsibilities beyond plaintiff’s role, she pointed to the position the comparator held from 2004-2008. Id. at 591-92. Although the court held that the plaintiff’s current position and the male comparator’s earlier position “share a common core of tasks,” the court still found differences in roles and responsibilities that precluded plaintiff’s prima facie case. Id. at 595-96.
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