18th Annual Workplace Class Action Report - 2022 Edition

68 Annual Workplace Class Action Litigation Report: 2022 Edition accommodate that request. On March 2, 2018, the Intervenor-Plaintiff resigned. Id. at *4. The EEOC’s action alleged that the employer discriminated against the Intervenor-Plaintiff on the basis of her pregnancy by undertaking four actions, including: (i) transferring her existing sales accounts to a newly hired employee on a different team; (ii) refusing to assign a new sales lead in her territory; (iii) invoking the “windfall” provision of her employment contract to cap the amount of commission she could receive on an audit/settlement that she contributed to before she went on maternity leave; and (iv) upon her return from maternity leave, reassigning her Canada territory to a male colleague, and assigning to her a different territory. Id . at *2-3. As to the disparate treatment claim, the Court noted that despite requesting a sales lead for approximately a month and a half prior to her maternity leave, the Intervenor-Plaintiff’s supervisor did not assign one to her territory until almost two months after she returned from leave. As such, the Court held that a reasonable jury could find that the loss of this income-producing opportunity constituted an adverse employment action. Further, the Court found there was direct evidence of intentional discrimination when the supervisor announced on a conference call that he would not be assigning the Intervenor- Plaintiff new sales leads because of her “condition,” in reference to her pregnancy. Id. at *11. Accordingly, the Court held that Defendant was not entitled to summary judgment on the EEOC’s discrimination claim. Turning to the second claim asserting retaliation, the EEOC alleged, in part, that Defendant retaliated against the Intervenor-Plaintiff by paying her less commission on a deal than she should have received as a result of her maternity leave. Defendant argued that the Intervenor-Plaintiff did not originate the deal and participated minimally, and therefore she was not entitled to the sales commission. The Court concluded that summary judgment on the retaliation claim would be improper, since there was a question of fact as to whether she was entitled to the commission bonus. Finally, the Court granted Defendant’s motion for summary judgment regarding the constructive discharge claim. Viewing the totality of the evidence in the EEOC’s favor, the Court opined that the EEOC’s best theory for establishing the constructive discharge claim was that from the time the Intervenor-Plaintiff disclosed to her supervisor that she was pregnant, he took steps to siphon off income-producing opportunities from her sales pipeline, until her commission prospects were so diminished that she would have no choice but to resign. However, the Court held that even this scenario was not enough to meet the, “intolerable work environment,” standard. Id. at *20-21. Therefore, the Court granted Defendant’s motion for summary judgment on the constructive discharge claim. EEOC v. University Of Miami, 22021 U.S. Dist. LEXIS 186479 (S.D. Fla. Sept. 29, 2021). The EEOC brought claims of gender discrimination on behalf of the charging party, Louise Davidson-Schmich, alleging that Defendant violated the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act by paying her less than her counterpart, John Gregory Koger, a male professor who performed the same job. Following discovery, the EEOC and Defendant cross-moved for summary judgment. Defendant moved for summary judgment on all the EEOC’s claims. Defendant primarily argued that the record established that Davidson-Schmich and Koger did not perform the same job at the University, and even if they did perform the same job, Defendant maintained that the record established that the pay differential was based on factors other than the professors’ sex. At the heart of this dispute was the question of whether Defendant discriminated against Davidson-Schmich in 2007 when it hired her as an associate professor at a salary of $72,000 and that same year hired Koger, a male professor with comparable qualifications for a lower-ranked position in the same department at a salary of $81,000. The EEOC claimed that due to the 2007 discriminatory pay differential, Defendant’s fixed pay increases failed to correct the original discrepancy in that despite both the promotions of Davidson-Schmich and Koger to full professorships, he still made approximately $28,000 more than her. Defendant asserted that the EEOC could not establish a prima facie case of pay discrimination under the EPA because Davidson-Schmich and Koger had never performed substantially equal jobs. Further, even if the EEOC met its initial burden, Defendant maintained that it could establish a legitimate and non-discriminatory basis for the pay differential. The burden then shifted back to the EEOC to show pretext for the pay differential, which Defendant contended that it had failed to establish. In denying Defendant’s motion as to the Equal Pay Act claim, the Court found that there remained a genuine issue of fact regarding whether the professors performed substantially equal jobs. The Court was not persuaded by Defendant’s position that they two did not perform comparable jobs and found a genuine issue of material fact remained as to whether the pay differential was based on factors other than sex. As to the Title VII claim, because the EEOC had established its disparate pay claim under the more rigorous analysis of the EPA, the Court opined that it had also met its initial burden of showing a prima facie case under Title VII. While Defendant had articulated legitimate, non-discriminatory reasons for initially paying Koger more than Davidson-Schmich, the Court determined that the EEOC had cast sufficient doubt on Defendant’s