©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 25 demonstrating weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the proffered reason for the employment action such that a reasonable factfinder could find them unworthy of credence.”194 Under Title VII, on the other hand, a plaintiff has an alternative to the McDonnell Douglas framework, which allows a plaintiff to “survive summary judgment if she presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.’”195 The court affirmed the denial of both claims. However, in the Title VII context, that failure went to plaintiff’s prima facie case, rather than the issue of pretext: “[Plaintiff] failed to establish a prima facie case by showing a convincing mosaic of intentional discrimination. The evidence relied upon is subjective and would not allow a jury to infer intentional discrimination.”196 B. Significant Class And Collective Action Decisions Unlike the EEOC, which can bring lawsuits on behalf of a class of aggrieved individuals without meeting the requirements for class certification, private litigants must establish that their equal pay lawsuits can be decided on a collective or class-wide basis. The procedures for establishing a collective action under the federal EPA are governed by the opt-in procedures of the Fair Labor Standards Act (“FLSA”). Those procedures can confer a significant litigation advantage to plaintiffs because the standard applied at the conditional certification stage is much more lenient than the standards applied to certify a class action under Rule 23 of the Federal Rules of Civil Procedure or its state-law analogues. 1. Recent Cases Involving Collective Action Certification Section 216(b) of the FLSA allows an action under the EPA to proceed “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”197 The only statutorilymandated procedural prerequisite to bringing a collective action is that: “no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”198 Although § 216(b) is silent as to how the collective action certification issue should be analyzed, most district courts use a two-step approach.199 At the conditional certification stage, the court does not make any final decisions as to whether a collective action is appropriate. At the more onerous second-stage analysis, the court will ultimately account for all of the important facts learned through discovery that inform which putative plaintiffs, if any, are similarly situated to the existing plaintiffs.200 The plaintiff’s burden at the conditional certification stage is quite low. A plaintiff need “merely provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.”201 “[C]onditional certification in the first step requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.”202 If they succeed in doing so, the court will allow notice to be sent to each putative member of the collective action, which 194 Id. The court affirmed the district court’s judgment on that claim because, among other things, the plaintiff failed to identify affirmative evidence to establish pretext, and instead relied on subjective testimony. Id. at *3. 195 Id. (quoting Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019)). 196 Id. at *4. 197 See 29 U.S.C. § 216(b) (providing a private right of action “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated”). 198 Id. 199 See Knox v. John Varvatos Enters., Inc., 282 F. Supp. 3d 644, 652-53 (S.D.N.Y. 2017) (citing Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989); Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978); Damassia v. Duane Reade, Inc., 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006)). 200 Id. at 654. 201 Bouaphakeo v. Tyson Foods, 564 F. Supp. 2d 870, 892 (N.D. Iowa 2008) (quoting Salazar v. Agriprocessors, Inc., No. 07-cv1006–LRR, 2008 WL 782803, at *5 (N.D. Iowa Mar. 17, 2008)). 202 Id. (quoting Young v. Cerner Corp., 503 F. Supp. 2d 1226, 1229 (W.D. Mo. 2005)); see also Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574, 577 (N.D. Iowa 2005) (“Courts have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs were victims of a common policy or plan that violated the law.”).
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