74 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP and a part-time staff attorney working for a university’s health sciences center sued the university and a handful of individual defendants, alleging they were paid less than various comparators who held other high-level positions. After discovery, the individual defendants each filed motions for summary judgment, arguing that they cannot be considered plaintiffs’ employer under the economic realities test. The court agreed, holding that plaintiff had failed to establish that either the Chancellor or the Vice Chancellor of administration and finance were plaintiffs’ employers. Although the Chancellor had the power to fire plaintiffs, there was no evidence to suggest that he could also hire them.617 Nor could plaintiffs establish that he supervised or controlled plaintiffs’ work schedules or conditions of employment, determined their salaries, or maintained their employment records.618 In particular, the court drew a distinction between the ability to recommend raises versus the authority to determine the rate and method of payment: “the fact that Plaintiffs recognize that [Chancellor] could only recommend raises shows that [Chancellor] did not have the authority to determine the rate of pay or method of payment,” and refused to credit plaintiffs’ argument that the ability to access university records was equivalent to maintaining those records: “Plaintiffs argue that [Chancellor] satisfies this prong because ‘[the university] as an institution maintained all employees’ HR records which [Chancellor] had access to at any point in his role as Chancellor. Plaintiffs’ logic is breathtaking: under this argument, every person who has access to the [university] system would satisfy this prong.’”619 On August 24, 2023, the Fifth Circuit affirmed the district court’s decision.620 With respect to the Chancellor, the court held that plaintiffs had failed to allege that he was involved in the rescission of their contracts, and thus affirmed the dismissal of their claims against him: “As an initial matter, [plaintiffs] do not allege that [Chancellor] was involved in the recission of their employment contracts, which is the only alleged retaliatory action that we hold survives summary judgment.”621 With respect to the employer’s Deputy General Counsel, the court found that even though he had participated in decisions regarding plaintiffs’ termination and drafted their termination letters, this was insufficient to establish individual liability: “being one of several voices contributing to a decision—ultimately made by another individual—to terminate Plaintiffs does not transform him into an employer,” and “[r]eviewing employment and termination letters is a regular part of legal counsel's responsibilities, and this does not transform legal counsel into the employer of every person whose termination letter he or she reviews.”622 But even at the motion to dismiss stage, many courts will not hesitate to dismiss allegations of individual liability that are conclusory or devoid of critical details. For example, in Caples v. Thiel,623 the court dismissed an EPA claim that was brought against four individual defendants rather than plaintiff’s actual entity employer. In that case, a female employee alleged she was paid less and did not receive the same benefits, pension, vacation, or full-time status as her male predecessor. The court held that, under Seventh Circuit precedent, individual employees cannot be held liable under the ADA and Title VII.624 With respect to the EPA, the court held that in order to proceed against an individual defendant, “a plaintiff must not only explain what each defendant did, but must explain how each defendant’s actions harmed her.”625 The court granted the defendant’s motion to dismiss because plaintiff had failed to allege those facts. 617 Muslow, 2022 WL 1642137, at *32-33. 618 Id. at *33-34. 619 Id. at *34 (internal citations and quotations omitted). 620 Muslow v. La. State Univ. & Agric. & Mech. Coll., Bd. of Supervisors, No. 22-30585, 2023 WL 5498952 (5th Cir. Aug. 24, 2023). 621 Id. at *10. 622 Id. 623 Caples v. Thiel, No. 17-cv-1797-pp, 2019 WL 1116948 (E.D. Wisc. Mar. 11, 2019). 624 Id. at *5. 625 Id. at *6.
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