©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 31 On appeal, the Eleventh Circuit affirmed the decision of the district court, noting that “Title VII and the EPA have different burdens of proof,” and that, “[u]nder Title VII, ‘there is a relaxed standard of similarity between male and female-occupied jobs, but a plaintiff has the burden of proving an intent to discriminate on the basis of sex.’”239 The court also compared the burden imposed on plaintiffs seeking to overcome an employer’s proffered explanation for a wage disparity. Under the EPA, a plaintiff “can show pretext by demonstrating weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the proffered reason for the employment action such that a reasonable factfinder could find them unworthy of credence.”240 Under Title VII, on the other hand, a plaintiff has an alternative to the McDonnell Douglas framework, which allows a plaintiff to “survive summary judgment if she presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.’”241 The court affirmed the denial of both claims. However, in the Title VII context, that failure went to plaintiff’s prima facie case, rather than the issue of pretext: “[Plaintiff] failed to establish a prima facie case by showing a convincing mosaic of intentional discrimination. The evidence relied upon is subjective and would not allow a jury to infer intentional discrimination.”242 B. Significant Class And Collective Action Decisions Unlike the EEOC, which can bring lawsuits on behalf of a class of aggrieved individuals without meeting the requirements for class certification, private litigants must establish that their equal pay lawsuits can be decided on a collective or class-wide basis. The procedures for establishing a collective action under the federal EPA are governed by the opt-in procedures of the Fair Labor Standards Act (“FLSA”). Those procedures can confer a significant litigation advantage to plaintiffs because the standard applied at the conditional certification stage is much more lenient than the standards applied to certify a class action under Rule 23 of the Federal Rules of Civil Procedure or its state-law analogues. 1. Recent Cases Involving Collective Action Certification Section 216(b) of the FLSA allows an action under the EPA to proceed “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”243 The only statutorilymandated procedural prerequisite to bringing a collective action is that: “no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”244 Although § 216(b) is silent as to how the collective action certification issue should be analyzed, most district courts use a two-step approach.245 At the conditional certification stage, the court does not make any final decisions as to whether a collective action is appropriate. At the more onerous second-stage analysis, the court will ultimately consider the important facts learned through discovery to determine which putative plaintiffs, if any, are similarly situated to the existing plaintiffs.246 239 Calicchio v. Oasis Outsourcing Group Holdings, L.P., No. 21-12854, 2022 WL 2761720, at *3 (11th Cir. July 15, 2022) (quoting Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992)). 240 Id. The court affirmed the district court’s judgment on that claim because, among other things, the plaintiff failed to identify affirmative evidence to establish pretext, and instead relied on subjective testimony. Id. 241 Id. (quoting Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019)). 242 Id. at *4. 243 See 29 U.S.C. § 216(b) (providing a private right of action “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated”). 244 Id. 245 See Knox v. John Varvatos Enters., Inc., 282 F. Supp. 3d 644, 652-53 (S.D.N.Y. 2017) (citing Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989); Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978); Damassia v. Duane Reade, Inc., No. 04-cv-8819(GEL), 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006)). 246 Id. at 654.
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