52 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP Defendant produces ‘sufficient evidence such that no rational jury could conclude but that these proffered reasons actually motivated the wage disparity’ at issue.”431 Burden shifting issues aside, establishing pretext is often a highly fact-specific and granular affair.432 Some courts have focused more heavily on an employer’s state of mind to decide the pretext analysis. Evidence of direct discrimination is often enough to cast an employer’s stated reasons for a pay disparity in doubt. For example, in Egelkamp v. Archdiocese of Philadelphia,433 the court first held that the employer’s proffered justifications could meet the burden to shift the burden of proof back to plaintiff.434 Plaintiff pointed to comments made by her supervisor that were demeaning to the employer’s female General Counsel (“when you hire a female as your general counsel, there's a head problem, an ego problem”), among other things. The court held that although this and other statements were ambiguous and subject to competing interpretations, it was nevertheless enough to send the issue of pretext to the jury: “A reasonable jury, weighing the credibility of the relevant witnesses, could find that [plaintiff] was paid less than [comparator] because of her gender even though there was substantial similarity between their responsibilities and relevant experience. When the record evidence is considered as a whole and reviewed in the light most favorable to [plaintiff], a factfinder could, at minimum, disbelieve the [employer’s] reasons for paying [plaintiff] less than [comparator].”435 Absent such evidence, however, courts are often loathe to second guess an employer’s motivations. In Hornsby-Culpepper v. Ware,436 for example, the Eleventh Circuit held that the touchstone of the pretext inquiry centers on the employer’s beliefs, not the employee’s beliefs; “a plaintiff is not allowed to merely recast an employer’s proffered nondiscriminatory reasons or substitute her business judgment for that of 431 Id. (quoting Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000)). Because the employer could not come up with contemporaneous evidence that it had in fact set plaintiff’s and her comparators’ salaries according to their different qualifications, the court held that a reasonable juror could conclude that those qualifications do not explain the wage disparity. Id. 432 To name just a few examples, some courts have examined employer’s recruitment activities, see, e.g. Moore v. Baker, No. 2:18cv-00311-KD-B, 2020 WL 4934274, at *12 (S.D. Ala. July 20, 2020) (holding that college that had posted for plaintiff’s comparator’s position on several occasions with different salary ranges, having been unsuccessful in its first attempt with a lower salary, belied the notion of pretext: “considering these facts, expecting parity between a salary needed to retain an employee and a salary needed to recruit an employee with similar experience is not justified”) (emphasis in original), or corporate reorganizations, see, e.g., Anderson-Strange v. Nat’l R.R. Passenger Corp., No. 17-cv-1859-RGA, 2019 WL 2438842, at *4-5 (D. Del. June 11, 2019) (rejecting a claim that the reclassification of a manager’s position to a lower pay grade was merely pretext for discrimination where it was done pursuant to a restructuring plan, there was no evidence that that plan had been inconsistently applied, and where plaintiffs’ proffered comparators managed more stations across a larger geographic territory, and they managed direct reports that were spread across those multiple stations—factors that were consistent with plaintiff’s employer’s rationale for reclassifying her position into a lower pay grade). Other courts have rejected such defenses for various reasons. See, e.g., Clark v. Vivant Solar, Inc., No. 2:17-cv-144-JNP-JCB, 2020 WL 6873942, at *15 (D. Utah Nov. 23, 2020) (rejecting employer’s defense that it needed a regional HR manager who was physically located within plaintiff’s geographic territory to allow for regular visits and more face-toface interactions, finding that, while that could explain the relocation itself, it did not explain why plaintiff was not offered the chance to relocate along with that position); Emanuel v. Ala. State Univ., No. 2:17-cv-658-ALB, 2019 WL 3246398, at *3 (M.D. Ala. July 18, 2019) (rejecting employer’s defense that plaintiff’s compensation was less than his comparator’s due to a “rank adjustment” that was given years earlier to all employees at a time when plaintiff was still an associate professor, but when his comparator was a full professor due to “evidence that the 2009-10 [] Salary Schedule replaced all previous salary considerations demonstrates that there is a genuine issue of material fact as to whether the non-discriminatory reasons offered by [employer] are pretextual”); Fortenberry v. Gemstone Foods, LLC, No. 5:17-cv-1608-AKK, 2018 WL 6095196, at *4 (N.D. Ala. Nov. 21, 2018) ( “[A] reasonable jury could find that [employer’s] inconsistent application of its weekend pay policy and its shifting reasons for why it did not pay [plaintiff] for weekend work show that [employer’s] policy is pretext for a gender-based reason for the pay differential.”). 433 Egelkamp v. Archdiocese of Phila., No. 19-cv-3734, 2021 WL 1979422 (E.D. Pa. May 18, 2021). 434 Id. at *6 (“The [employer] contends [comparator] was paid more because he was more qualified, had more years of service with the [employer], and had significant experience with supervising employees and managing departments. . . . It also argues [comparator] had significantly greater responsibilities than [plaintiff]. . . . Taking the [employer’s] evidence as true, it points to sufficient facts to meet its relatively light burden.”) (internal citations and quotations omitted). 435 Id. at *7. 436 Hornsby-Culpepper v. Ware, 906 F.3d 1302 (11th Cir. 2018). In that case, a County Clerk complained about wage discrimination when she was hired at a lower salary than her predecessor in that position and her request for a higher salary was denied. Id. at 1307. The employer provided three non-discriminatory reasons for the lower salary, which involved budgetary constraints and the fact that plaintiff had previously been terminated from that position. Id. at 1312-13. Although plaintiff disputed the proffered reasons, the Eleventh Circuit found that she had “failed to point to any affirmative evidence establishing that his proffered reasons were false or a pretext for unlawful sex discrimination.” Id. at 1314.
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