©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 27 comparator had “expertise in coastal hazards, sea level rise, and shoreline erosion,” which plaintiff did not have, and that allowed him to take on roles and responsibilities that plaintiff was not qualified to perform.198 The supervisor testified that “because of his background and experience, [comparator] was doing different and more complex assignments than those given to [plaintiff],” which included working on “more challenging issues” and “more difficult and complex grant applications.”199 Accordingly, the court held that plaintiff had not met her burden to establish the requisite level of equality between her job and her comparator’s: “To be sure, [plaintiff] and [comparator] performed similar work. But the differences in the actual work performed and the level of complexity involved were significant enough that their work cannot be fairly described as ‘substantially equal’ or ‘virtually identical,’ as required to establish a claim under the Equal Pay Act.”200 Similarly, in Miller v. Levi & Korsinsky, LLP,201 a lawyer alleged she was paid less, and on different, less favorable terms, than two comparator lawyers in the same law firm. The court held that the plaintiff could not rely on those lawyers as comparators because of the significant difference in terms of experience and work history between her and those other lawyers. Among other things, the two other lawyers had been successful partners at other significant law firms before joining their current firm, whereas plaintiff had never been a partner.202 Accordingly, the court held that: “Plaintiff has not shown that her ‘length of experience’ or her prior positions render [comparators] appropriate comparators with sufficient shared employment characteristics.”203 Moreover, even if she had been able to establish a prima facie case, the court held that the significant difference in prior experience provided a non-pretextual justification for the alleged pay disparity: “It is reasonable, and often expected, that when a person transitions to a new place of employment, that person will leverage prior success and experience to negotiate larger compensation at the new place of business.”204 Methods of Proof. Sometimes an equal pay case will turn on the methods of proof used to establish equality of work. Some plaintiffs have attempted to make out a prima facie case by trying to establish a general pattern of discrimination through the use of statistics. But these attempts tend to miss the point of the “equal work” analysis, which is a determination of qualitative rather than quantitative difference. In Chavez v. Lewis & Lewis, Inc.,205 for example, a scale operator alleged various forms of discrimination, including sexual harassment, failure to promote, retaliation, and wage discrimination claims. The crux of her wage discrimination claim was that she was paid less because her employer did not allow her to advance in her position by, for example, training her or allowing her to drive trucks, which her male supervisors allegedly told her was a job “for the guys.”206 She also alleges that her male supervisors obstructed her ability to advance to different grades or to receive raises. In support, she introduced statistical evidence that compared the average wages and raises given to female employees versus those given to male employees to show a disparity in treatment.207 The court held that plaintiff’s claims were essentially that she was denied certain opportunities for advancement because of her gender, which are not violations of the EPA: “While Plaintiff attempts to differentiate between ‘promotion’ and 198 Id. at 430-31. 199 Id. at 431. 200 Id. at 432 (emphasis in original). The District Court for the Southern District of Ohio came to a similar conclusion in Flannery v. Riverside Research Inst., No. 3:18-cv-412, 2021 WL 1192526 (S.D. Ohio Mar. 30, 2021). In that case, an employee who had held several positions at a scientific research company alleged a history of wage discrimination based on, among other things, the fact that she was paid less as a Technical Researcher than the male employee who had taken that position after she was transferred to a different position. Id. at *1. The court held that plaintiff’s male comparator was able to use his enhanced skills to perform functions plaintiff could not do: “As part of his job duties as a Technical Researcher, [comparator] used his computer programming skills and, more specifically, his familiarity with the Matlab program, to perform coding simulations to assist in determining whether proposed solutions for various scientific problems could work outside the laboratory.” Id. at *5. Moreover, plaintiff had provided no evidence to dispute the employer’s claim that the Technical Researcher position was changed prior to the comparator’s hire such that it required the programming skills that plaintiff did not possess. Id. at *6. 201 Miller v. Levi & Korsinsky, LLP, No. 20-cv-1390(LAP), 2023 WL 6293940 (S.D.N.Y. Sept. 27, 2023). 202 Id. at *5. 203 Id. 204 Id. at *6. 205 Chavez v. Lewis & Lewis, Inc., No. 21-cv-0095-F, 2022 WL 3645204 (D. Wyo. July 25, 2022). 206 Id. at *12. 207 Id.
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