50 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP example, in Spurbeck v. Wyndham Worldwide,413 a timeshare sales representative alleged that male sales representatives were paid more for the same work. The sales representative position was subject to performance metrics that tracked the eligible dollar value of the vacation ownership (timeshare) interest sold divided by the number of tours that the sales representative saw in a month.414 Plaintiff argued that her employer gave male employees more opportunities to sell and more perks to help them sell.415 The court found no credible evidence to suggest that male employees were treated more favorably with respect to their ability or opportunity to earn more under the same commission schedule. But more importantly, the court held that “[e]ven if Plaintiff had or was able to show evidence of a pay disparity, she would need to contend with Defendants’ evidence that indicates that Sales Representatives were paid the same commission rate.”416 The court held that, because the employer used the same commission schedule to pay all sales representatives, it had adequately shown that its commission-based compensation plan was a system which measures earnings by quantity or quality of production.417 But in Bandokoudis v. Entercom Kansas City, LLC,418 the court rejected the “quality and quantity of production” defense due to the lack of clear evidence as to how it was applied consistently to all employees. In that case, a woman working as on-air talent for a radio station alleged she was paid less than another morning radio host who was male.419 The employer argued that it pays its on-air talent according to a system that measures the quantity or quality of production; the male host’s ratings and revenue were higher and he was more successful in securing advertisers.420 But it had not introduced any evidence to establish that those were the criteria used to determine plaintiff’s comparator’s pay. This was fatal to the “quantity and quality of production defense: “Without evidence of a system applied equally to Plaintiff and [comparator], Defendant fails to meet its burden with respect to this affirmative defense.”421 5. Pretext Even if an employer succeeds in establishing one of the enumerated affirmative defenses, a plaintiff may still succeed on an equal pay claim if he or she can show that the proffered reason for the wage disparity is merely a pretext for discrimination. Inconsistent application of work policies, as well as shifting and inconsistent testimony regarding the proffered justifications, are red flags that can lead to a finding of pretext. Most often this is considered by courts as the final step of the burden-shifting mechanism applicable to EPA claims, meaning that the burden shifts back to plaintiff to establish pretext. But a few recent decisions have cast the exact nature of the burden shifting regime in doubt under both federal and state law, at least in some jurisdictions. In Wilder v. Stephen F. Austin State University,422 the District Court for the Eastern District of Texas held that EPA plaintiffs never bear the burden to establish pretext. In that case, a female professor alleged she 413 Spurbeck v. Wyndham Worldwide, No. 2:20-cv-00346-RFB-NJK, 2022 WL 717925 (D. Nev. Mar. 9, 2022). 414 Id. at *2. Failure to meet minimum sales quotas could subject an employee to immediate termination. The plaintiff was eventually terminated for failing to meet sales quotas. Id. 415 Id. at *7. 416 Id. at *9. 417 Id. See also Cuthbertson v. First Star Logistics, LLC, No. 3:21-cv-00616-FDW-DSC, 2022 WL 16625588, at *8 (Nov. 1, 2022) (granting summary judgment for employer relying on “quantity and quality of production defense,” where “Plaintiff concedes commissions were determined based on the profitability of agents recruited, and she has not presented any evidence to contradict Defendant's commission calculations based on quality of work recruiting profitable agents,” and “Defendant's unrebutted evidence demonstrates that any difference in commission payments for Plaintiff and her male counterparts was due to individual performance based on both quantity and quality of those recruited”). 418 Bandokoudis v. Entercom Kansas City, LLC, No. 2:20-cv-02155-EFM-GEB, 2022 WL 1460008 (D. Kan. May 9, 2022). 419 The court first held that the plaintiff had adequately established that the two radio hosts’ positions were comparable: “it is undisputed that Plaintiff and [comparator] were both “on-air talent,” . . . during the same morning daypart. . . . Further, Plaintiff has provided sworn testimony that the duties and responsibilities of Plaintiff's and Dare's shows were the same, that the skills and effort required to hosts the shows were the same, that the supervision of the shows was essentially the same, and that the conditions of Plaintiff's and Dare's employment were the same.” Id. at *4. 420 Id. at *4, 7. But the court held that, rather than evidence of any real system, the employer had merely cited “its Operations Manager's amorphous explanation of what he considers in determining salaries.” Id. at *7. 421 Id. (emphasis in original). 422 Wilder v. Stephen F. Austin State Univ., No. 9:20-cv-40-ZJH, 2021 WL 3288303 (E.D. Tex. Aug. 2, 2021).
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