©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 25 as Police Chief.181 The court held that this was sufficient to establish that the positions were not equal: “although the job description for City Administrator did not change from [plaintiff] to [comparator], the expectations for the job did change, along with the effort required, and it changed because [plaintiff] worked the job part-time and [comparator] worked it full-time.”182 Similarly, in Presnell v. Sharp Electronics Corp.,183 a General Sales Manager (“GSM”) alleged she was discriminated against with respect to pay, among other things, pointing to five male GSMs as comparators. The court first found that there was one compensation plan for all GSMs.184 For at least some of the years at issue, the plaintiff was paid more than all but one of the other male GSMs. And the one who made more money was given additional compensation for continuing to directly supervise sales employees after the employer did not hire a Sales Manager to replace him when he became a GSM. Plaintiff, on the other hand, did not retain any direct responsibility over sales employees. But she did retain direct responsibility over account managers (not a direct sales position), which she argued made her level of responsibility comparable to the comparator GSM.185 The court disagreed, noting the high bar required of EPA plaintiffs to show equal work: “the Fourth Circuit has specifically held that the EPA requires that the two comparators have ‘virtually identical’ / ‘substantially equal’ jobs.”186 By that standard, the extra responsibilities undertaken by plaintiff’s comparator made their jobs unequal, and was also sufficient to establish the employer’s “factor other than sex” defense. The court concluded: “even if [employer] should have paid [plaintiff] some extra money because of her additional responsibility for ‘enterprise account managers,’ that fact is irrelevant to the clear conclusion that [comparator’s] and [plaintiff’s] jobs were meaningfully different and thus not ‘equal’ under the EPA.”187 Same Job; Different Time Period or Circumstances. Because the evaluation of “equal” or “similar” work is so fact-specific and often difficult to prove, plaintiffs often attempt to rely on various proxies to establish that requirement. One shortcut that is sometimes successful is to compare plaintiff’s pay with a predecessor who held the same position. This will often be sufficient to establish equality of work, unless there have been changes in duties or levels of responsibility. In Kling v. Montgomery County, Maryland,188 for example, the court held that an EPA plaintiff can establish a prima facie case by comparing her work and job responsibilities to a comparator’s position and responsibilities from the past—even those that are well before the statute of limitations for her claim—and even if the comparator no longer holds that position. The court held it is consistent with the purpose of the EPA “to consider the wages that a 181 Id. at *8. 182 Id. But see Kent-Friedman v. N.Y. State Ins. Fund, No. 18-cv-4422(VM), 2023 WL 6292693, at *15 (S.D.N.Y. Sept. 27, 2023) (holding that the fact that an employee was serving as an Assistant Director temporarily in an acting capacity could not justify paying that employee less than person who was eventually hired into that role permanently, noting that the plaintiff had served in the Acting role for two years and had done so with the expectation that it would lead to a permanent position, which evidence was “sufficient to create an issue of material fact as to whether [plaintiff’s] service in the Acting Assistant Director role was, for EPA purposes, truly temporary”). 183 Presnell v. Sharp Elecs. Corp., No. 5:21-cv-00107-KDB-DCK, 2022 WL 17683126 (W.D.N.C. Dec. 14, 2022). 184 Id. at *7. 185 Id. 186 Id. 187 Id. (emphasis in original). See also Miller v. Sam Hous. State Univ., No. H-15-cv-2824, 2019 WL 4758357 (S.D. Tex. Sept. 30, 2019), which held that a tenure-track Assistant Professor had failed to establish her job responsibilities were substantially similar to her chosen comparator, another Assistant Professor in the same field, because her comparator had elevated job responsibilities and was a licensed psychologist with clinical supervisory responsibilities. Id. The university showed that during the time that plaintiff did not have that license, it was required to devote extra resources to assist her, such as assigning a licensed psychologist to help supervise her students. Id. The district court concluded: “[b]ecause [comparator] did not require those extra resources in supervising his students, their work was not equal.” Id. That decision was reversed in 2021, however, and even reassigned to a different district court judge, after the Fifth Circuit called into question the comments and actions of the district court throughout the course of the litigation, holding that “the [district court’s] discovery restrictions suffocated any chance for [plaintiff] fairly to present her claims.” Miller v. Sam Hous. State Univ., 986 F.3d 880, 892 (5th Cir. 2021). 188 Kling v. Montgomery Cnty., Md., 324 F. Supp. 3d 582 (D. Md. 2018). In this case, a Hispanic Liaison for the Montgomery County Police Department requested a reclassification of her position to a higher pay grade, pointing to a male county employee who she alleged held a similar position at a higher pay grade. Id. at 588. After the county pointed out that the male comparator’s current position included significant contract monitoring, training, and other responsibilities beyond plaintiff’s role, she pointed to the position the comparator held from 2004-2008. Id. at 591-92. Although the court held that the plaintiff’s current position and the male comparator’s earlier position “share a common core of tasks,” the court still found differences in roles and responsibilities that precluded plaintiff’s prima facie case. Id. at 595-96.
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