60 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP Head of Human Resources for Global Technology and Operations, would have been responsible for the Head of Asia IT's specific salary.”493 Courts are often quick to stress that extending an EPA claim beyond a single establishment is the exception rather than the rule, and it requires the existence of “unusual circumstances” that tie together a larger group of employees under some centralized decision-making scheme. For example, in Winks v. Virginia Department of Transportation,494 an employee of a state agency alleged she was paid less than male employees for the same work. The agency argued that those comparators did not work in the same establishment as the plaintiff.495 The court found that there were no “unusual circumstances” that would justify expanding the usual definition of an establishment as a distinct physical place of business because the agency’s nine regional districts operated independently from its central office with respect to whom to hire and what to pay: “The districts, not the Central Office, control the duties and assignments of the NPDES Coordinators on a daily basis. Each district functions as a largely independent unit within VDOT, making its own decisions with only high-level oversight from the Central Office. In scenarios with similar facts, courts have repeatedly found that regional offices could not constitute a combined single establishment.”496 It can also be important that, unlike the EPA, there is no “establishment” requirement for plaintiffs proceeding under Title VII. In Lindsley v. TRT Holdings,497 the Fifth Circuit reversed and remanded a decision granting summary judgment on behalf of an employer. The district court held that Directors from other locations of the same hotel chain are not part of the same “establishment” where plaintiff worked, meaning that none of those Directors were proper comparators for purposes of analyzing her discrimination claim.498 The Fifth Circuit held that the case did not present the “unusual circumstances” that might warrant departure from the usual rule regarding an “establishment” under the EPA. But that analysis does not apply under Title VII, or to plaintiff’s state law claims, and the Fifth Circuit faulted the district court for failing to address that issue in the context of those statutory schemes: “Those statutes contain no ‘establishment’ requirement. Yet the district court did not address whether [plaintiff] established a prima facie case under Title VII and the Texas Labor Code based on male food and beverage directors at different [employer] locations.”499 Similarly, in Black v. Barrett Business Services, Inc.,500 the District Court for the District of Idaho held that the plaintiff did not work in the same establishment as all but one of her comparators because the other 493 Id. See also Boisjoly v. Aaron Manor, Inc., No. 3:21-cv-01621-MPS, 2022 WL 17272372 (D. Conn. Nov. 29, 2022) (refusing to dismiss at the pleading stage plaintiff’s EPA claims on the basis of the employer’s argument that her comparators worked at a different “establishment” because such determinations are fact-intensive and should not be made without the benefit of discovery: “[Plaintiff] alleges that [employer] is a central administrative unit that hires employees, sets wages, and assigns the location of employment for its employees. This is enough at the pleadings stage to allow her to take discovery to prove whether unusual circumstances are present”) (internal citations omitted); Vasser v. Mapco Express, LLC, No. 3:20-cv-00665, 2021 WL 2661136, at *3 (M.D. Tenn. June 29, 2021) (holding that plaintiffs had adequately alleged that a large chain of gas stations and convenience stores were a single establishment under the EPA because “Plaintiffs allege that [employer’ has ‘a rigid top down, hierarchical corporate structure,’ with a ‘top down wage policy.’ . . . These allegations are sufficient for an initial finding of a ‘single establishment’ at the motion to dismiss stage”); O’Reilly v. Daugherty Sys., Inc., No. 4:18-cv-1283 SRC, 2020 WL 1557174 (E.D. Mo. Mar. 31, 2020) (authorizing collective action notice to be sent to all female employees in two job categories in multiple offices across the country on the strength of the plaintiffs’ allegations that employees “were all subject to the same compensation policies and practices, which the two owners of the company implemented for all employees regardless of job title, salary grade, or geographic location”). 494 Winks v. Va. Dep’t of Transp., No. 3:20-cv-420-HEH, 2021 WL 5614764 (E.D. Va. Nov. 30, 2021). 495 Id. at *3. 496 Id. at *4 (emphasis in original). 497 Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 464 (5th Cir. 2021). In that case, a hotel Food and Beverage Director alleged she was paid less than other Food and Beverage Directors who worked at different outposts of the same hotel chain in different cities in Texas. 498 Lindsley v. TRT Holdings, No. 3:17-cv-2942-X, 2019 WL 6467256, at *1 (N.D. Tex. Dec. 2, 2019). The Fifth Circuit held that the plaintiff had “put forth a prima facie case of sex discrimination,” and stated “[i]f there is a good explanation for that disparity, [employer] is required to put one forth if it wishes to prevail in this litigation. [Employer] failed to do so. Yet the district court granted summary judgment to [employer] anyway.” Lindsley, 984 F.3d at 464. The court pointed to the fact that plaintiff had established that she was paid less than her predecessors in the same position, and “[n]o more is needed to establish a prima facie case.” Id. at 467. 499 Id. at 468. 500 Black v. Barrett Bus. Servs., Inc., No. 1:18-cv-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019).
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