34 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP conditional certification of a collective of similarly situated female employees of the district. Noting the lenient standard applicable at the conditional certification stage, the court relied on grievances filed by four elementary Principals and four salary review requests filed by Assistant Principals, as well as sworn affidavits from four of the plaintiffs, and found these were sufficient to show that “the District had a common policy of crediting education, experience, and tenure differently when making salary placement determinations, depending on the sex of the applicant or employee.”259 And in De Block v. Speedway LLC,260 a female general manager, who was seeking to represent a collective action of all female general managers nationwide, presented as evidence, among other things, her own deposition testimony and sworn declarations from five present or former female general managers, in addition to a few company forms, including the Compensation Manual.261 The court held that those documents were sufficient at the conditional certification stage to meet the modest factual showing necessary to establish that individuals employed as general managers performed equal jobs: “Plaintiff has shown sufficient facts for a conditional finding that salaried Speedway general managers are similarly situated with regards to the allegations, both by having similar duties and responsibilities across Speedway stores and by being subject to a common compensation policy.”262 The crux of the matter, however, is whether a plaintiff can establish a common policy that led to the alleged EPA violations. If an employer can marshal enough evidence of its own to show that no such common policy exists, then certification can be defeated, even at the conditional certification stage. For example, in Winks v. Virginia Department of Transportation,263 an Architect/Engineer for the Virginia Department of Transportation alleged she was paid less than male employees and sought to conditionally certify a collective action of the approximately 60 Architect/Engineers, out of approximately 400, who are women. The court rejected plaintiff’s bases for conditional certification, holding that “[w]ith over fifty-three different sub-categories, the employees in the Architect/Engineer I position have significant differences in crucial details like day-to-day responsibilities and skill requirements,” and noting that the employer “maintains that it considers thirteen factors when considering an appropriate salary for each individual plaintiff,” that it “uses a market-based pay system to ensure that salaries are competitive in each locality,” and that “[e]ach local [employer] office determines a salary range that is competitive and individualized to the person and the position.”264 The Court concluded that “[t]he decentralized and individualized nature of pay determinations alone is sufficient to demonstrate the absence of a common policy implemented throughout all of [employer’s] offices.”265 For collective actions that would encompass plaintiffs who work in different physical “establishments”— different stores or office locations, for example—the critical questions for certification often center around corporate hierarchy and decision making. Where a plaintiff can establish that critical compensation decisions were made by one group in one location, courts may allow such a claim to proceed as a collective action. For example, in Vasser v. Mapco Express, LLC,266 two female convenience store 259 Id. at *4. Conditional certification was denied with respect to the teacher plaintiffs, however, because they had not submitted any evidence to support their claim for collective relief and relied solely upon the allegations in the complaint. Id. at *4-5. “Teacher Plaintiffs do not support their claims with anything more than the averments in the Third Amended Complaint. . . . Teacher Plaintiffs' claims are unsupported by affidavits or other evidence showing personal knowledge, identifiable facts, or a legal connection that would indicate hearing their cases together with those of the Elementary School Assistant Principal and Technology Specialist Plaintiffs would promote judicial efficiency.” Id. at 5. 260 De Block v. Speedway LLC, No. 20-cv-824, 2021 WL 4818310 (E.D. Pa. Oct. 15, 2021). 261 Id. at *2. 262 Id. The court rejected the employer’s argument that plaintiff could not have met her burden because it applied a facially neutral compensation policy, which the employer argued gave it a presumption of fairness that plaintiff must overcome. The court rejected this argument, holding that objection went to the merits of plaintiff’s case and was not appropriately argued in opposition to conditional certification. Id. at *3. 263 Winks v. Va. Dep’t of Transp., No. 3:20-cv-420-HEH, 2021 WL 2482680 (E.D. Va. June 17, 2021). 264 Id. at *2-3. 265 Id. at *3. The court also pointed to the recent decision in Abe v. Virginia Department of Environmental Quality, wherein the Fourth Circuit held that the use of salary history can justify a pay disparity: “This standard requires a specific showing that a plaintiff's reduced salary is due to her status as a female, and cannot be attributed to variations in prior salary history, job responsibilities and qualifications, location, or other factors.” Id. (citing Abe v. Va. Dep’t of Env’t Quality, No. 3:20-cv-270, 2021 WL 1250346, at *4 (E.D. Va. Apr. 5, 2021)). Accordingly, an employer’s use of salary history is not only permissible, but is also a factor that makes conditional certification of a collective action less appropriate. 266 Vasser v. Mapco Express, LLC, No. 3:20-cv-00665, 2021 WL 2661136 (M.D. Tenn. June 29, 2021).
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