©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 9 outnumber by a ten-to-one margin the lone alleged comparator who was paid more for equal work, the Court concludes that [plaintiff] fails to establish a prima facie EPA claim.”44 Upon review, the Eighth Circuit noted that it had been urged by plaintiff “to only compare her job situation to that of [her one chosen comparator].”45 The court obliged, simply assuming that the facts presented established a prima facie case. The Eighth Circuit ultimately affirmed based on its analysis of the defendant’s affirmative defenses, noting that plaintiff’s comparator brought skills and experience to the job that she did not possess. The court concluded: “In sum, [defendant’s] explanation for the pay differential—the differences in skillsets and experience and the desire to incentivize [plaintiff] to grow in the position—is sufficient to satisfy its burden of proving the pay differential was based on a factor other than sex.”46 The Second Circuit also declined to decide this issue in Eisenhauer v. Culinary Institute of America,47 a case that is discussed in greater detail, infra.48 The plaintiff in that case had identified only a single relevant comparator to establish her claim under the EPA and the New York Equal Pay Law. The employer argued that the plaintiff could not rely on a single comparator to establish her prima facie case, especially since there were other comparable males who made less than her and other females who made more than other males.49 Both sides relied on the same Second Circuit case in support of their positions, Lavin-McEleney v. Marist College.50 The court examined the reasoning in that case and concluded: “Lavin-McEleney, as well as the discussions from the Fourth Circuit cited by the Second Circuit, show that a plaintiff may identify a single male comparator at the initial stage of the case, as Plaintiff has done here, but can later introduce additional data when addressing the ultimate merits of the case at trial. In each case, the plaintiff was required to identify a single male employee at the initial stage of litigation in order to establish a prima facie burden.”51 Upon review, the Second Circuit sidestepped this issue entirely. In a footnote, the court acknowledged that the employer had argued that plaintiff “could not have established a prima facie case by identifying a single male-comparator employee who earns more than her while ignoring all other employees who perform substantially equal work,” and that “[t]he question of how many comparators are necessary to 44 Id. at *6. 45 O’Reilly, 63 F.4th at 1197. 46 Id. 47 Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507 (2d Cir. 2023). 48 See infra Part II.C.2. 49 Eisenhauer v. Culinary Inst. of Am., No. 19-cv-10933 (PED), 2021 WL 5112625, at *4 (S.D.N.Y. Nov. 3, 2021). 50 Lavin-McEleney v. Marist Coll., 239 F.3d 476 (2d Cir. 2001). 51 Eisenhauer, 2021 WL 5112625, at *5. The district court went even further, holding that while a single comparator may be insufficient to prove discrimination as a matter of fact before a jury, it is sufficient to establish a prima facie case prior to trial because it would contravene Second Circuit precedent to allow an employer to attack a plaintiff’s prima facie case based on the existence of other comparators. To do so, the employer would have to establish as a matter of fact that those comparators were similarly situated to the plaintiff or their comparator. But that question is the province of the jury, and therefore cannot be decided before trial: “Put another way, if Defendant cannot establish the absence of a pay disparity as a matter of law, then Plaintiff's prima facie showing must stand, despite the existence of employees who may serve as counterexamples to wage discrimination at trial.” Id. at *6. This rather extreme position has generally not been followed, even within the Southern District of New York. For example, in Kaye v. N.Y.C. Health and Hosps. Corp., No. 18-cv-12317 (JPC) (JLC), 2023 WL 2745556 (S.D.N.Y. Mar. 31, 2023), a forensic psychiatrist argued, among other things, that she was paid less than male comparators for the same work. Plaintiff emphasized that the question of whether two positions are substantially equivalent under the EPA is a question for the jury. Id. at *14. However, the court held that “[a]s with all questions of fact ordinarily resolved by a jury at trial, . . . the question of whether a plaintiff and an oppositesex comparator performed substantially equal work may be resolved by the Court on summary judgment unless ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In particular, the court noted that “the Second Circuit has held that summary judgment should be granted to EPA defendants when a plaintiff fails to set forth specific facts showing that substantially equal work was performed by the plaintiff and the identified comparators.” Id. (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)). Analyzed in that light, the court concluded that plaintiff had failed to establish a prima facie case because, among other things, she had failed to introduce evidence concerning the actual job content of her comparators’ positions vis-à-vis her own, and because the employer had presented evidence showing substantial differences in actual job content. Id. at *14-15.
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