26 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP comparator previously received for substantially similar work; the Court should not have to disregard a gender-based discrepancy in salaries simply because the higher paid position has evolved or no longer exists.”189 The different statutes of limitations for EPA and Title VII claims can be critical when plaintiffs attempt to compare themselves to past positions. In Boatright v. U.S. Bancorp,190 a Managing Director of a financial services firm alleged, under the EPA and Title VII, that she had been paid less than a male comparator. The court held that she could not establish a prima facie case under the EPA because, during the entire relevant time period for that statute, her chosen comparator was her superior, having been promoted to chief of the group in which she was employed.191 As her superior, it was clear that his job was not substantially equal to hers.192 Title VII, however, has a longer statute of limitations. For some of the relevant period, plaintiff and her male comparator shared the same Managing Director job tile. This was enough to establish that he was a proper comparator under the minimal burden required by Title VII.193 Nevertheless, the court held that plaintiff had failed to show discriminatory animus, as required by Title VII but not by the EPA, finding that the differences in pay and resources between her and her comparator were not sufficient to establish animus.194 Successors or replacements in the same position can also be useful comparators to establish the “equal work” requirement.195 However, just as with predecessor comparators, the job must have remained the same since it was held by plaintiff. Courts are cognizant of the fact that the duties of a job can sometimes change simply because a different person, with different capabilities, holds the position. For example, in Polak v. Virginia Department of Environmental Quality,196 the Fourth Circuit held that employees’ different levels of expertise and experience allowed one to take on different roles and responsibilities that made his work unequal to a female colleague who was not qualified to take on those roles, even though they worked in the same position as team members under the same supervisor. In that case, a “coastal planner” of a state environmental agency alleged that she was paid less than a male employee she “worked closely with” and about whom she “believed . . . had the same position and that they were doing essentially the same work.”197 However, their supervisor testified that plaintiff’s 189 Id. at 592. See also Powell v. New Horizons Learning Solutions Corp., No. 17-cv-10588, 2018 WL 6571216, at *5 (E.D. Mich. Dec. 13, 2018) (“If a female employee is paid less than a male predecessor, the Sixth Circuit permits claims of unequal pay.”) (citing Conti v. Am. Axle, 326 Fed. App’x 900, 914 (6th Cir. 2009)). 190 Boatright v. U.S. Bancorp, No. 18-cv-7293, 2020 WL 7388661 (S.D.N.Y. Dec. 16, 2020). 191 Id. at *12. 192 Among other things, plaintiff’s supervisor “served as the leader and supervisory principal of the San Francisco office and supervised all employees of the [group]. He was in charge of monitoring the performance of all employees and evaluating them. Additionally, he was charged with developing and implementing the [group’s] revenue generation strategies.” Id. 193 The court noted that they shared the same title and internal grade within the employer’s hierarchy, occupied the same level on the company’s organization chart, and had the same job description when hired. Id. at *16. 194 Id. A prima facie case under Title VII also requires the plaintiff to show facts giving rise to an inference of discriminatory animus, an intent requirement that is not required by the EPA. Although plaintiff had pointed to several allegedly discriminatory remarks, including that Washington, D.C. had “bad ... neighborhoods” and was “unseemly,” that the former Chairman of Goldman Sachs “grew up in a really bad neighborhood,” and that “the Obamas are disgusting,” the court held that those statements were “race and gender neutral”: “[a]n employer or supervisor can comment that an urban area has bad neighborhoods or compliment a bank Chairman for having achieved success despite having come from a less privileged background without—by such comments—taking on the burden to justify (even through a burden of production) an adverse employment action for an employee.” Id. at *16-17. Moreover, “an employer or supervisor may make derogatory, but race and gender neutral, comments about a political figure including a President of the United States without giving rise to an inference of discrimination.” Id. at *17. 195 See, e.g., Spencer v. Austin, No. 19-cv-7404, 2021 WL 4448723, at *9-10 (N.D. Ill. Sept. 28, 2021) (holding that plaintiff sufficiently alleged that she and her comparator performed equal work because her comparator was her replacement in the same position, rejecting the employer’s arguments that the plaintiff and her replacement had different job titles and could not have worked in “similar working conditions” because their tenures did not overlap, noting that comparators are compared based on actual job duties and performance, rather than titles, and because “employees need not overlap to serve as useful comparators”); Mooberry v. Charleston S. Univ., No. 2:20-cv-769, 2022 WL 123005, at *7 (D.S.C. Jan. 13, 2022) (finding that plaintiff established a prima facie case where she pointed to her successor as coach of the women’s volleyball team as her comparator and where, “[u]pon a review of the record and in a light most favorable to the non-moving party, the Court finds that Plaintiff was required to perform all the additional duties outlined in [comparator’s] contract”). 196 Polak v. Va. Dep’t of Envtl. Quality, 57 F.4th 426 (4th Cir. 2023). 197 Id. at 428.
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