18 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP Recognition Corp.,129 a female sales representative alleged she was paid less than similarly-situated males because her employer had improperly diverted her commissions to other employees, while this had not happened to male employees. The employer paid sales employees according to an incentive plan that included a salary component and a target amount of incentive compensation, which would vary depending on whether and to what extent they met their sales quotas.130 Although plaintiff admitted that the incentive plan was not inherently discriminatory, and the court found that she had failed to provide evidence of a male comparator in the same position who was paid more than her, plaintiff nevertheless based her discrimination claim on her allegations that some of the credit and commissions she had been owed were given to another female employee.131 The court held that this could not support an EPA claim because “Plaintiff provides no evidence that her circumstances were nearly identical to those of a betterpaid employee who is not a member of the protected class, because the alleged ‘better-paid employee’ is a member of the same protected class.”132 Moreover, the court held that plaintiff failed to establish that the “diversion” of commissions she complained of did not happen to male employees as well: “the evidence provided by Defendant indicates that, on occasion, both male and female employees received ‘adjustments’ to their total sales numbers prior to incentive awards being calculated.”133 Accordingly, her theory did not support any relief under the EPA. Many times, the more esoteric theories of wage discrimination involve plaintiffs who were actually paid more than their comparators. Plaintiffs have attempted many theories to try to shoehorn such facts into an equal pay claim, often with little success. In Black v. State of Ohio Industrial Commission,134 a state agency’s Chief Legal Counsel brought an equal pay claim based on a comparison with her successor in the same position. The problem, however, was that plaintiff’s final rate of pay was higher than her successor’s at the time he was hired. At the motion to dismiss stage, the plaintiff had skirted this inconvenient fact by alleging that, although her successor was hired at a lower wage, the employer had quickly increased his pay above hers. The court ruled at the time that “[a]n employer cannot evade liability under the Equal Pay Act merely by paying a male successor a ‘starting’ wage below that of a female predecessor, only to turn around and increase his pay above that of hers.”135 But this theory did not pan out. Although plaintiff’s successor did receive a raise soon after hire, his new wage was still less than plaintiff’s final wage. Plaintiff also argued that her successor’s wages were increased more quickly than hers, noting that in her first three years on the job, her pay increased by 10.3% overall, for an annual increase of 3.4%, whereas her successor’s pay was increased by 14.7% overall, for an annual increase of 4.9% in his first three years on the job.136 The court rejected this argument, noting that plaintiff’s slower increase was explained by factors other than sex; namely, a pay freeze imposed by the governor during a portion of her employment, and other political factors that allowed for a faster increase during her successor’s tenure.137 Similarly, in Moore v. Penfed Title, LLC,138 the court rejected a plaintiff’s Title VII wage discrimination claim based on his theory that he was not paid enough above comparators who held positions with less responsibility than him: “[Plaintiff] cannot make out the fourth prima facie element of a Title VII unequal compensation discrimination claim with respect to his overall salary. His argument boils down to an objection that he was not awarded enough of a premium above all other . . . employees for his unique role within the organization. In this respect, the Court will not second guess [employer’s] compensation 129 Traudt v. Data Recognition Corp., No. 3:21-cv-02703-M, 2023 WL 3220196 (N.D. Tex. May 2, 2023). 130 Id. at *2. 131 Id. at *3. 132 Id. 133 Id. 134 Black v. State of Ohio Indus. Comm’n, No. 2:21-cv-2987, 2023 WL 5935650 (S.D. Ohio Sept. 12, 2023). 135 Id. at *11. 136 Id. at *12. 137 Id. 138 Moore v. Penfed Title, LLC, No. 1:20-cv-0867, 2021 WL 2004785 (E.D. Va. May 18, 2021). In that case, a Vice President of a credit union alleged he was discriminated against on multiple grounds, including with respect to compensation. Proceeding under Title VII, the plaintiff alleged that he was paid “a relatively low salary” due to discrimination against him, that he was wrongfully denied a 5% year-end bonus, and that his supervisor refused to give him a performance evaluation that would have allowed him to receive a bonus or merit increase. Id. at *3.
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