64 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP more than merely “articulate” a legitimate nondiscriminatory reason for a pay disparity, but must instead: “submit evidence from which a reasonable factfinder could conclude not simply that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.”524 Applying that framework, the court held that the plaintiff did not need to establish pretext to avoid summary judgment because “summary adjudication on the EPA claim is proper only if Defendant produces ‘sufficient evidence such that no rational jury could conclude but that these proffered reasons actually motivated the wage disparity’ at issue.”525 Burden shifting issues aside, establishing pretext is often a highly fact-specific and granular affair.526 Some courts have focused more heavily on an employer’s state of mind to decide the pretext analysis. Evidence of direct discrimination is often enough to cast an employer’s stated reasons for a pay disparity in doubt. For example, in Egelkamp v. Archdiocese of Philadelphia,527 the court first held that the employer’s proffered justifications could shift the burden of proof back to plaintiff.528 Plaintiff pointed to comments made by her supervisor that were demeaning to the employer’s female General Counsel (“when you hire a female as your general counsel, there's a head problem, an ego problem”), among other things. The court held that although this and other statements were ambiguous and subject to competing interpretations, it was nevertheless enough to send the issue of pretext to the jury: “A reasonable jury, weighing the credibility of the relevant witnesses, could find that [plaintiff] was paid less than [comparator] because of her gender even though there was substantial similarity between their responsibilities and relevant experience. When the record evidence is considered as a whole and reviewed in the light most favorable to [plaintiff], a factfinder could, at minimum, disbelieve the [employer’s] reasons for paying [plaintiff] less than [comparator].”529 discriminatory intent,’” and, “[l]ike its federal counterpart, the California EPA also does not require proof of discriminatory intent.” Id. at *6. 524 Id. at *7 (quoting Rizo, 950 F.3d at 1222) (emphasis in original). 525 Id. (quoting Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000)). Because the employer could not come up with contemporaneous evidence that it had in fact set plaintiff’s and her comparators’ salaries according to their different qualifications, the court held that a reasonable juror could conclude that those qualifications do not explain the wage disparity. Id. 526 To name just a few examples, some courts have examined employer’s recruitment activities, see, e.g. Moore v. Baker, No. 2:18cv-00311-KD-B, 2020 WL 4934274, at *12 (S.D. Ala. July 20, 2020) (holding that college that had posted for plaintiff’s comparator’s position on several occasions with different salary ranges, having been unsuccessful in its first attempt with a lower salary, belied the notion of pretext: “considering these facts, expecting parity between a salary needed to retain an employee and a salary needed to recruit an employee with similar experience is not justified”) (emphasis in original), or corporate reorganizations, see, e.g., Anderson-Strange v. Nat’l R.R. Passenger Corp., No. 17-cv-1859-RGA, 2019 WL 2438842, at *4-5 (D. Del. June 11, 2019) (rejecting a claim that the reclassification of a manager’s position to a lower pay grade was merely pretext for discrimination where it was done pursuant to a restructuring plan, there was no evidence that that plan had been inconsistently applied, and where plaintiffs’ proffered comparators managed more stations across a larger geographic territory, and they managed direct reports that were spread across those multiple stations—factors that were consistent with plaintiff’s employer’s rationale for reclassifying her position into a lower pay grade). Other courts have rejected such defenses for various reasons. See, e.g., Clark v. Vivant Solar, Inc., No. 2:17-cv-144-JNP-JCB, 2020 WL 6873942, at *15 (D. Utah Nov. 23, 2020) (rejecting employer’s defense that it needed a regional HR manager who was physically located within plaintiff’s geographic territory to allow for regular visits and more face-toface interactions, finding that, while that could explain the relocation itself, it did not explain why plaintiff was not offered the chance to relocate along with that position); Emanuel v. Ala. State Univ., No. 2:17-cv-658-ALB, 2019 WL 3246398, at *3 (M.D. Ala. July 18, 2019) (rejecting employer’s defense that plaintiff’s compensation was less than his comparator’s due to a “rank adjustment” that was given years earlier to all employees at a time when plaintiff was still an associate professor, but when his comparator was a full professor because: “evidence that the 2009-10 [] Salary Schedule replaced all previous salary considerations demonstrates that there is a genuine issue of material fact as to whether the non-discriminatory reasons offered by [employer] are pretextual”); Fortenberry v. Gemstone Foods, LLC, No. 5:17-cv-1608-AKK, 2018 WL 6095196, at *4 (N.D. Ala. Nov. 21, 2018) (“[A] reasonable jury could find that [employer’s] inconsistent application of its weekend pay policy and its shifting reasons for why it did not pay [plaintiff] for weekend work show that [employer’s] policy is pretext for a gender-based reason for the pay differential.”). 527 Egelkamp v. Archdiocese of Phila., No. 19-cv-3734, 2021 WL 1979422 (E.D. Pa. May 18, 2021). 528 Id. at *6 (“The [employer] contends [comparator] was paid more because he was more qualified, had more years of service with the [employer], and had significant experience with supervising employees and managing departments. . . . It also argues [comparator] had significantly greater responsibilities than [plaintiff]. . . . Taking the [employer’s] evidence as true, it points to sufficient facts to meet its relatively light burden.”) (internal citations and quotations omitted). 529 Id. at *7.
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