14 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP and without trying to resolve the conflict directly, the court noted that “district courts in this circuit have repeatedly found that plaintiffs fail to establish a prima facie case when the evidence supports that the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more.”45 The court concluded that the plaintiff could not base her prima facie case on one comparator: “[Plaintiff] admitted that 10 male employees were either paid less than she or did not perform equal work. Given that alleged comparators that either were paid less did or did not perform equal work 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.”46 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].”47 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.”48 The Second Circuit also declined to decide this issue in Eisenhauer v. Culinary Institute of America,49 a case that is discussed in greater detail, infra.50 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.51 Both sides relied on the same Second Circuit case in support of their positions, Lavin-McEleney v. Marist College.52 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.”53 the other hand, in Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001), the Eighth Circuit found that a plaintiff failed to establish a prima facie case under Title VII where the evidence showed that she was paid the same as, or more than, at least some males in the same position. O’Reilly, 2021 WL 4504426, at *5. 45 O’Reilly, 2021 WL 4504426, at *5 (citing Evans v. Autozone Stores, Inc., No. 05-cv-1086, 2008 WL 697752, at *10 (W.D. Ark. Mar. 13, 2008); Garrard v. First Step, Inc., No. 1:14-cv-1033, 2015 WL 2248217, at *2 (W.D. Ark. May 13, 2015); Peniska v. CJ Foods Inc., No. 8:19-cv-277, 2021 WL 24729 (D. Neb. Jan. 4, 2021)). 46 Id. at *6. 47 O’Reilly, 63 F.4th at 1197. 48 Id. 49 Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507 (2d Cir. 2023). 50 See infra Part II.C.2. 51 Eisenhauer v. Culinary Inst. of Am., No. 19-cv-10933 (PED), 2021 WL 5112625, at *4 (S.D.N.Y. Nov. 3, 2021). 52 Lavin-McEleney v. Marist Coll., 239 F.3d 476 (2d Cir. 2001). 53 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
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