EEOC Selected Legal Developments: Wage Discrimination Under Title VII and the Equal Pay Act

Transcription

1 EEOC Selected Legal Developments: Wage Discrimination Under Title VII and the Equal Pay Act A. Title VII The Lilly Ledbetter Fair Pay Act of 2009 supersedes Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), and states that for purposes of determining whether a compensation discrimination charge is timely, the 180/300-day filing period begins to run with each paycheck that is lower as the result of a discriminatory compensation decision or other discriminatory practice, even if the discriminatory decision or practice initially occurred more than 180/300 days before the charge filing. Cty. of Washington v. Gunther, 452 U.S. 161 (1981). Claims of sex-based wage discrimination can be brought under Title VII subject to the Equal Pay Act s (EPA) four affirmative defenses. Title VII is not limited, however, by the equal work standards found in the EPA. Riser v. QEP Energy, 776 F.3d 1191 (10th Cir. 2015). The plaintiff, an administrative services representative, performed fleet administration and facilities management duties and received a salary of $47,382. Shortly before her termination, the defendant created separate fleet administrator and facilities manager positions, hired younger men for both positions, and paid them $62,000 and $66,000, respectively. Reversing summary judgment for the defendant on the plaintiff s claim of sex- and age-based pay discrimination under Title VII and the ADEA, the court held that genuine issues of fact remained regarding whether the defendant s explanation for the pay disparities was pretextual. Although the defendant asserted that the pay disparities were due to its pay classification system, a reasonable juror could find that that explanation lacked credibility, because the male comparators were paid 31% and 39% more than the plaintiff was paid, even though she had performed most of the work performed by the comparators combined. Moreover, the defendant classified the plaintiff s position based on administrative work that she did not perform, and disregarded her requests for a title and salary that reflected her responsibilities. Blackman v. Florida Dep t of Bus. & Prof l Regulation, 599 F. App x 907 (11th Cir. 2015). The court affirmed summary judgment for the defendant on the plaintiff s claim that the defendant violated Title VII and the EPA by paying her less than her male predecessor, two other male bureau chiefs, and a male subordinate. The court held that the plaintiff, the Bureau Chief of Operations, failed to establish a prima facie case as to comparisons to the Regional Program Administrator, Chief of Investigations, or Chief Auditing Officer, because she failed to provide evidence regarding the actual content of those positions. While the plaintiff s predecessor was a valid comparator, the defendant provided legitimate, nondiscriminatory reasons for his higher pay, namely his superior educational qualifications and, more importantly, the legislatively mandated raises that he received during his entire 13-year tenure. The state stopped providing legislatively mandated raises one year after the plaintiff assumed her predecessor s position, and thus, the salary difference between her and her predecessor was the result of that change.

2 2 Niwayama v. Texas Tech Univ., 590 F. App x 351 (5th Cir. 2014), cert. denied 135 S. Ct (2015). The plaintiff, an associate professor of chemistry, alleged that she was paid less than male and non-japanese chemistry professors. Vacating in part summary judgment to the defendant, the court held that genuine issues of fact remained regarding whether the defendant s justification for the pay disparity was pretextual. Although the defendant asserted that salaries were based on a neutral formula that incorporated research funding and teaching evaluations, the defendant failed to specifically explain how it computed salaries under that formula. Moreover, a male assistant professor hired at the same time as the plaintiff received a higher salary than the plaintiff, even though the plaintiff had better teaching evaluations and had received similar research funding. The tenure hearing panel had also concluded that the plaintiff had been held to a higher tenure evaluation standard than other faculty members with regard to both research funding and teaching evaluations. A reasonable jury could find that the formula used to determine salaries was applied selectively and inconsistently, given that the same department administrator considered the same factors (funding and teaching evaluations) when making tenure and salary decisions regarding the plaintiff and other professors. The court also held that the plaintiff survived summary judgment on her EPA claim. While noting that the EPA is theoretically different than the analysis under Title VII, the court concluded that the same facts were sufficient to create a jury issue under the EPA. Thibodeaux-Woody v. Houston Cmty. Coll., 593 F. App x 280 (5th Cir. 2014). The plaintiff, a program manager, alleged that she was paid less than a male program manager in violation of the EPA and Title VII. The defendant argued that the pay disparity was based on the male program manager s successful negotiation of his salary. However, evidence indicated that both the plaintiff and the male applicant had expressed interest in negotiating their salaries. The plaintiff s interviewer allegedly informed her that negotiation was not permitted (a statement he knew to be false) and declined to convey her negotiation request to individuals with authority to negotiate, while the male applicant s interviewer forwarded his negotiation request to the appropriate individuals. Because there were genuine issues of material fact regarding whether the defendant had discriminatorily applied its negotiation policy, the court reversed summary judgment for the defendant under both the EPA and Title VII. In allowing the plaintiff to proceed under Title VII, which, unlike the EPA, requires a showing of discriminatory intent, the court noted evidence that the plaintiff s supervisor, who had also been her interviewer, had made derogatory comments about women, such as referring to her as a princess, telling her that she reminded him of his mother, and suggesting that she rely on her husband s income. King v. Acosta Sales & Mktg., Inc., 678 F.3d 470 (7th Cir. 2012). The court reversed summary judgment for the employer on the plaintiff s Title VII pay discrimination claim. The plaintiff, a business manager, represented producers that sought to sell to supermarkets and other bulk purchasers. The defendant employed approximately 20 business managers in its Midwest region, including the plaintiff and six other women. The court noted that the pay differences between male and female business managers in the Midwest region were striking, with all of the men being paid more than all but one of the women. While acknowledging that the employer s asserted reliance on education and experience could explain some or even all of the differences in starting salaries, the court stated that there was no reason why they should explain pay

3 3 increases, which typically depend on someone s demonstrated work performance. Thus, the employer might have hired men with higher starting salaries because of education, but if men and women performed equally well on the job, then women should have received more rapid raises, and the salaries should have tended to converge. However, the evidence showed that male business managers salaries rose much more rapidly than females, including the plaintiff s. In fact, although pay was strongly influenced by sales and the employer conceded that the plaintiff was one of the most successful sales executives, male employees with comparable sales were paid twice as much. The evidence also showed that salaries for business managers within the Midwest region were not consistent with pay scales set by national management, as the plaintiff and all but one of the other women were paid less than the low end of the scale while five men were paid more than the high end of the scale. A reasonable jury could agree with the plaintiff that these discrepancies were based on sex discrimination. Onyiah v. St. Cloud State Univ., 684 F.3d 711 (8th Cir. 2012). The plaintiff, a professor, alleged that he was subjected to wage discrimination based on his race (Black) and national origin (Nigerian). The defendant asserted that the plaintiff s salary was consistent with its salary policy and noted that the plaintiff had declined to negotiate for a higher salary. Affirming summary judgment in favor of the defendant, the court held that the plaintiff failed to establish that the defendant s explanation was pretextual. The court observed that the non-black, non-nigerian comparators identified by the plaintiff were hired and offered salaries by deans other than the individual responsible for the plaintiff s selection and salary and that the plaintiff s closest comparators, two Black male professors who were born in Nigeria, both had salaries that were not only significantly higher than the plaintiff s, but also significantly higher than the salaries of several non-black, non-nigerian professors. Moten v. Broward Cty. Med. Exam r & Trauma Servs., 494 F. App x 968 (11th Cir. 2012). The plaintiff alleged that she was subjected to discrimination based on race (black) when she received a lower hourly wage than a white colleague with less seniority. The employer argued that it based the comparator s hourly wage on a number of factors, including: (1) the urgent need to fill the position; (2) the desire to partially offset the comparator s relocation costs; and (3) the comparator s experience. The employer also noted that the official who offered the comparator the position was unaware of the plaintiff s hourly wage. Affirming summary judgment for the employer, the court held that the plaintiff failed to establish that the employer s justifications were pretextual. Johnson v. Weld Cty., Colo., 594 F.3d 1202 (10th Cir. 2010). Affirming summary judgment for the employer, the court held that the plaintiff failed to establish a prima facie case of pay discrimination under Title VII because she made no showing that she occupied a job similar to that of the higher-paid male comparator. The comparator had considerably greater accounting, finance, and supervisory experience, and even if it were true, as the plaintiff alleged, that she performed at least percent of the comparator s duties while he was in training, that still left numerous responsibilities solely in the male comparator s hands.

4 4 Warren v. Solo Cup Co., 516 F.3d 627 (7th Cir. 2008). The court affirmed summary judgment for the employer on wage discrimination claims under Title VII and the EPA where the employer showed that the difference in wages between a female and a male tool crib attendant was justified by the male s greater skill in using computers. To establish a prima facie case of pay discrimination under Title VII, the plaintiff was required to show that she was similarly situated to the higher-paid male employee. Here, the male s advanced degrees and computer skills prevented the female from establishing that the two were similarly situated, despite the fact that the job description did not require advanced degrees or computer skills. The court concluded that the motion for summary judgment was properly granted because the evidence established that the company considered education, experience, and attitude in setting wage rates and that the female and male comparator were therefore not materially comparable. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th Cir. 2007). Reversing summary judgment for the employer on claims of sexual harassment, constructive discharge, and wage discrimination, the court determined that a reasonable jury could conclude that the employer s explanations were pretextual. The employer asserted that it did not give the plaintiff a raise because of a negative performance review and that her checks regularly came up short because she inappropriately marked up her time cards. However, the court noted that the negative performance review was issued by the alleged harasser and that the plaintiff testified that the alleged harasser told her to make notations on her timecards and that this was a regular practice for which others were not punished. Quinones v. Buick, 436 F.3d 284 (1st Cir. 2006). The plaintiff failed to establish that the employer s articulated reasons for paying a white coworker more money under a flat rate per job pay system was a pretext for discrimination based on national origin (Puerto Rican). Evidence showed that the white coworker was faster, more efficient, and completed more jobs in a shorter period of time than the plaintiff. Even if the plaintiff was more experienced and produced better quality work than the white coworker, the pay system rewarded efficiency and fast work. There was no evidence that the plaintiff s pay was computed differently than the coworker s pay or that the coworker s higher pay was motivated by discrimination. Balmer v. HCA, Inc., 423 F.3d 606 (6th Cir. 2005). Affirming the district court s summary judgment for the employer on a female plaintiff s Title VII and EPA sex-based wage discrimination claims, the Sixth Circuit determined that a factor other than sex warranted the pay difference between the plaintiff and a male coworker. The court noted that the male coworker had asked for a higher salary than the plaintiff had asked for and that he had a higher salary history than the plaintiff. Most importantly, the ultimate decisionmaker determined that the male coworker had greater relevant industry experience. The plaintiff failed to establish that these reasons were pretextual based on evidence of alleged differences in pay between male and female employees. The plaintiff relied on an extremely small sample size; attempted to compare long-time female employees to much more recently hired male employees; and failed to take into account the employees overall qualifications. The evidence merely showed that the employer paid some men more than women and some women more than men depending on a variety of factors.

5 5 Cardoso v. Robert Bosch Corp., 427 F.3d 429 (7th Cir. 2005). Affirming summary judgment in the employer s favor, the court determined that a statement by the plaintiff s supervisor that the plaintiff was paid less than coworkers because of his national origin did not constitute direct evidence of discrimination. The court noted that it was undisputed that the supervisor did not make the decision to hire the employee or to set his salary at a particular level and did not have any input into those decisions. The court further found that the evidence offered by the plaintiff did not establish that the employer s legitimate explanation for the pay disparity that the higher-paid employees had master s degrees and more work experience when they joined the company was a pretext for discrimination. Although the plaintiff alleged that he was better qualified than coworkers and deserved a better salary, his contentions amounted to a disagreement with the employer s evaluation of his skills compared with coworkers and did not establish that the employer s reasons were pretextual. Horn v. Univ. of Minn., 362 F.3d 1042 (8th Cir. 2004). The plaintiff, an assistant coach for the defendant s women s hockey team, alleged that he was discriminated against based on his sex by being paid significantly less than the other assistant coach of the hockey team, a woman. The plaintiff alleged that after complaining about the wage disparity to his employer, he was treated very poorly by the head coach and forced to quit. The court rejected his claim of wage discrimination, noting that, similar to the EPA framework, Title VII requires a showing of someone of the opposite sex performing substantially equal work. Despite the similarity in job titles and descriptions, however, the female assistant coach acted as an external liaison for the program while the plaintiff was the internal liaison. The female coach was responsible for creating a booster club and leading practices in the head coach s absence while the plaintiff interfaced with athletic trainers and academic counselors. In affirming summary judgment, the court held that the weight the employer accorded to the female comparator s external duties was within its discretion. Taylor v. White, 321 F.3d 710 (8th Cir. 2003). Noting that when a gender-based Title VII claim relates solely to an allegation of unequal pay for equal work, the standards of the EPA apply, the court of appeals affirmed the district court s grant of summary judgment dismissing the plaintiff s claim. The defendant raised, as a factor other than sex, the fact that the plaintiff s salary disparity was due to a policy which called for employees to retain their salaries as they are transferred to various positions. The plaintiff did not dispute the existence of the salary retention policy but argued that the employer s sloppiness and lack of documentation in implementing the salary retention program supported an inference of discrimination. The court of appeals rejected this. The court also rejected the plaintiff s argument that prior salary could never be a factor other than sex because it is inherently discriminatory. Instead of adopting a per se rule, the court, citing with favor cases in other circuits, said the key is to carefully examine the facts to make sure that reliance on past salary is not simply a means to perpetuate historically low wages for women. Siler-Khodr v. University of Tex. Health Science Ctr. San Antonio, 261 F.3d 542 (5th Cir. 2001). Statistical studies indicating a relationship between gender and salaries presented a jury question

6 6 as to whether the plaintiff s unequal pay was gender-based. Both studies analyzed salary data of hundreds of faculty members university-wide. While the reports did not study faculty salaries by medical sub-specialty or study the supervisor s individual conduct, they were sufficient to prove a Title VII claim. Kovacevich v. Kent State Univ., 224 F.3d 806 (6th Cir. 2000). After reversing the district court and ordering it to enter the jury s verdict on the EPA claim, the court held that the plaintiff automatically was entitled to judgment on her Title VII disparate treatment pay claim, citing circuit precedent. The court also held that the district court erred in concluding that the plaintiff s Title VII disparate impact claim was met by the university s affirmative defense that the merit system was a legitimate business necessity. It noted that the district court cursorily dismissed the disparate impact claim on the ground that the university s merit system and across-the-board percentage increases were adopted for legitimate business reasons. The district court did not consider whether the plaintiff showed the reason was pretext, or whether an alternative existed that would achieve the same business ends with a less discriminatory impact. The court remanded the Title VII disparate impact claim for the district court to perform a more thorough analysis. Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707 (8th Cir. 2000). A female in-house attorney alleged she was paid less than a male attorney in violation of Title VII. The court affirmed summary judgment for the employer on the ground that the plaintiff failed to establish a prima facie case. In the Eighth Circuit, EPA standards apply to Title VII claims of unequal pay for equal work, and the plaintiff did not show that she and her male comparator had similar responsibilities, seniority, or background. The male attorney had two years more experience at the employer (though not as an in-house attorney), had a greater depth of industry experience, supervised another attorney while the plaintiff did not, and was responsible for handling litigation. Bickerstaff v. Vassar Coll., 196 F.3d 435 (2d Cir. 1999). A female African-American college professor was denied a promotion to full professor. She challenged this action under Title VII and alleged, among other things, that the college paid her less than male professors of comparable rank. The plaintiff introduced a multiple regression analysis of professors salaries, controlling for experience, rank, productivity, and discipline. The court held that the district court did not abuse its discretion in according the plaintiff s statistical analysis no probative weight. The plaintiff s multiple regression analysis did not even purport to account for two of the major variables teaching and service that went into merit increases. Smith v. Va. Commonwealth Univ., 84 F.3d 672 (4th Cir. 1996). Based on a salary study (multiple regression analysis) that showed that female faculty members were being paid less than male faculty members, the university created a $440,000 salary adjustment fund to provide salary increases. Male professors brought suit against the university, alleging that the salary adjustments violated Title VII. The university argued that the salary adjustments were valid affirmative action measures. The court reversed summary judgment for the university, holding that there was a material question of fact as to whether there was a manifest imbalance in

7 7 compensation between the male and female faculty because the university s multiple regression analysis failed to include the very factors that the university uses in determining raises i.e., the merit factors. Meeks v. Computer Assocs. Int l, 15 F.3d 1013 (11th Cir. 1994). A jury finding of an EPA violation does not mean the employer is automatically liable for sex discrimination under Title VII. Title VII and the EPA require different burdens of proof. Under Title VII, the burden is on the plaintiff to establish the employer s legitimate non-discriminatory reason is pretextual. The EPA requires the employer to prove its actions were based on a factor other than sex. Therefore, if the evidence is balanced as to whether a factor other than sex existed in the EPA context, then the plaintiff wins her EPA claim and loses her Title VII claim because she did not meet her burden to prove the employer s reason was pretextual. The court upheld the jury s verdict on the EPA claim but reversed the Title VII judgment. Turney v. General Motors, L.L.C., 126 Fair Empl. Prac. Cas. (BNA) 622, 2015 WL (N.D. Ind. Feb. 10, 2015). The plaintiff, an engineering manager, alleged that the defendant discriminated against her based on sex by paying her less than similarly situated male engineers and classifying her job at a lower level than her male counterparts. Denying the defendant s motion for summary judgment, the court held that genuine issues of fact remained regarding whether the plaintiff s gender influenced the defendant s compensation and job classification decisions. In particular, the plaintiff was maintained in a level 7 position, even though the defendant acknowledged that the engineering manager position merited a level 8 designation, and engineering managers at other production facilities, all of whom were male, had level 8 designations. Although the defendant claimed that the plaintiff s department had production problems, it had failed to notify her promptly about any performance concerns. Cox v. Boehringer Ingelheim Pharms., Inc., 123 Fair Empl. Prac. Cas. (BNA) 409, 2014 WL (D. Minn. May 27, 2014). The plaintiff, a sales representative, alleged that she was paid less than male sales representatives in violation of the Equal Pay Act, Title VII, and the Minnesota Human Rights Act. The court concluded that a jury could find the defendant s explanations for the pay differential credible: that the male comparators were hired more recently than the plaintiff and had sales experience that the plaintiff did not have. However, a jury could instead conclude that the plaintiff was paid less because of her gender, given that she had more seniority and a higher title than the male comparators, she had substantially outperformed many, if not all, of the comparators, yet received a lower salary than every comparator between 2010 and 2013 (with the exception of one comparator for a few months in 2011), and she had received smaller merit increases than some comparators. Accordingly, the court denied the defendant s motion for summary judgment. Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407 (S.D.N.Y. 2014). Eleven female pharmaceutical sales representatives filed suit against their employer alleging sex and pregnancy discrimination with respect to pay and promotions. Granting the employer s motion for summary judgment in part and denying it in part, the district court held that the employees plausibly alleged a pattern or practice of pay discrimination with respect to base salaries and also as to bonuses and annual

8 8 raises; a disparate impact claim based on the method by which the employer set base salaries and on its policy of denying earned bonuses to employees on leave for greater than six weeks; and eleven individual disparate treatment Title VII pay claims. Denying claims of some individual employees and accepting claims of others on various alleged issues, the court held that three of five employees stated individual claims of pregnancy discrimination, and that the complaint sufficiently alleged a pattern or practice of pregnancy discrimination and a disparate impact claim based on the employer s alleged ranking practice, which based sales representatives compensation and discipline on their sales quotes, without making adjustments for time that the employees spent on maternity leave. Ladik v. Wal-Mart Stores, Inc., 124 Fair Empl. Prac. Cas. (BNA) 453, 2014 WL (W.D. Wis. Aug. 22, 2014). The plaintiffs, current and former employees, alleged that the defendant subjected them to discrimination in pay and promotions based on their sex. Granting summary judgment for the defendant, the court held that statistical disparities between male and female employees at the defendant s Wisconsin stores were insufficient to establish the plaintiffs disparate treatment and disparate impact claims, absent evidence connecting the wage disparities to specific employment practices. The plaintiffs failed to provide sufficient context for some compensation decisions, and evidence suggested that some pay disparities may have resulted from more aggressive negotiation by male comparators. Further, one plaintiff (Sondra Steeb- Lamb), a lead deli associate, was not similarly situated to her male comparator, her husband, who was a baker. While the position descriptions for the positions included similar qualifications, the baker s job description included several tasks and skills unique to baking, and the plaintiff failed to identify any deli associate tasks that required a comparable level of skill. Although Steeb-Lamb believed that her husband received a higher salary because he was the head of a household, she failed to provide specific facts supporting this belief, and her subjective belief did not constitute evidence of discriminatory intent. Hodgson v. City of New York, 117 Fair Empl. Prac. Cas. (BNA) 1024, 2013 WL (S.D.N.Y. Mar. 7, 2013). The plaintiff, director of the photographic services unit of the New York Police Department, alleged that she and female colleagues were subjected to gender discrimination in pay and job classification. Granting in part summary judgment for the employer, the court concluded that the plaintiff failed to establish that the employer s policies and practices were motivated by gender bias. Under the employer s salary policies, managers salaries were determined based on a percentage-increase from their prior salaries. The plaintiff failed to prove that these policies resulted from gender bias. In addition, the plaintiff failed to provide evidence that the disproportionate number of women employed in lower-paying units was discriminatory. Sharpe v. Global Sec. Int l, 766 F. Supp. 2d 1272 (S.D. Ala. 2011). The plaintiff, an African- American laborer, alleged that he was paid less than two white comparators (Anderson and Brown) because of his race. Noting that Anderson was hired after the plaintiff and was at no given point in time paid more than the plaintiff, the employer contended that Anderson was not a proper comparator. Disagreeing, the court noted that when the plaintiff started working for the employer in December 2007, he was paid $8.00 per hour while Anderson was hired in May 2008

9 9 at $8.50 per hour. Similarly, when the plaintiff became a permanent employee in March 2008, he was paid $9.00 per hour whereas Anderson was paid $9.50 per hour upon becoming a permanent employee in August Thus, at identical states of employment, the plaintiff was consistently paid less than Anderson. The employer did not explain its reason for the pay differential, and, therefore, the court denied the employer s motion for summary judgment as to the plaintiff s claim of wage discrimination comparing himself to Anderson. The employer contended that Brown s experience as a plant-wide supervisor justified paying him $10.00 per hour as a new employee compared with the $9.75 per hour that the plaintiff was being paid when Brown was hired. To show pretext, the plaintiff presented evidence of disparaging comments about African-Americans, and he noted that Brown was not hired as a supervisor but as a new laborer and that the plaintiff trained and supervised Brown when Brown was first hired. Based on this evidence, a reasonable factfinder could conclude that Brown s supervisory experience was irrelevant and could not plausibly justify the pay differential. Jones v. St. Jude Med. S.C., Inc., 823 F. Supp. 2d 699 (S.D. Ohio 2011), aff d, 504 F. App x 473 (6th Cir. 2012). The court granted summary judgment to the employer on the plaintiff s claim of sex- and race-based compensation discrimination where the plaintiff, an African-American sales representative, had a higher base salary and higher commission rate than her white male counterparts. Although two comparators had higher rates of guaranteed compensation than the plaintiff, their guarantees were higher because they were competitive hires. In contrast to the plaintiff, who had transferred internally because of personal reasons, the two male comparators were offered higher compensation guarantees as an incentive to switch employers and as compensation for the business they were expected to bring with them. Cf. Grover v. Smarte Carte, Inc., 836 F. Supp. 2d 860 (D. Minn. 2011) (concluding that relevant comparison was between guaranteed annual pay for plaintiff and her male comparators, rather than between aggregate compensation over multiple years). Goodman v. Merrill Lynch & Co., 716 F. Supp. 2d 253 (S.D.N.Y. 2010). Concluding that the defendants advisor transition program (ATP) was a bona fide production compensation system, the court granted the defendants motion to dismiss. On January 1, 2009, when Bank of America acquired Merrill Lynch, the two companies announced that they would be paying retention awards under the ATP to high-performing financial advisors (FAs) measured solely by individual FAs production credits through September Section 703(h) of Title VII protects an employer s bona fide merit, seniority, or production-based compensation system, even where the system has a discriminatory impact. Although other sex discrimination by Merrill Lynch regarding account distributions and partnership formations may have affected the plaintiff s overall production credits, the ATP itself was protected. Nevertheless, the plaintiff could challenge the ATP by alleging sufficient facts to make it plausible that the ATP was adopted with the intent to discriminate against her and other female FAs. The plaintiff had alleged that the defendants were aware of pervasive past and ongoing intentional discrimination when they adopted the ATP, but such knowledge did not make it plausible that the ATP was actually adopted with discriminatory intent. In dismissing the claim, the court granted the plaintiff leave to replead. However, expressing great skepticism that the plaintiff could sufficiently allege intentional discrimination, the court cautioned her to carefully consider whether she could allege

10 10 additional facts that would make her claim plausible rather than merely possible, keeping in mind Rule 11 sanctions. B. Equal Pay Act Dimino v. Georgia Dep t of Admin. Servs., 631 F. App x 745 (11th Cir. 2015). The plaintiff alleged that she was paid less than male employees who performed substantially equal work, in violation of the Equal Pay Act and Title VII. The court held that the plaintiff failed to establish that she and one of the comparators performed substantially equal work where they had different job titles and responsibilities and the comparator supervised the plaintiff. The comparator developed and implemented the risk-management liability program; identified and negotiated premiums, coverage, and deductibles; managed staff; and valued and recommended liability coverage. The plaintiff supervised, directed, and audited a third party administrator, managed the claims-handling process, settled some claims, and served as the liaison with the state attorney general s office. The district court erroneously concluded that a second male comparator did not perform substantially equal work, given evidence that he and the plaintiff both exercised supervisory responsibilities and oversaw programs with multi-million dollar budgets, and that a division director believed that both performed similar work and should have been paid roughly the same. However, the defendant established an affirmative defense under the EPA with respect to the second comparator, and the plaintiff did not show that it was pretextual. The State Personnel Administration determined job classifications based on duties, requirements, and qualifications; the plaintiff and the comparator had different job classifications, titles, and pay scales; and the defendant lacked the authority to pay the plaintiff the same salary as the comparator. Although an Assistant Commissioner allegedly said that the plaintiff needed polish and did not embody the Assistant Commissioner s idea of a professional woman, the Assistant Commissioner approved the plaintiff s promotion. The defendant also presented evidence that approximately half of its employees were female, that 75% of the employees promoted since 2011 were women, and that three of the five highest paid employees were women. Because the employer had established a legitimate, nondiscriminatory reason for the pay differential externally set job classifications and pay grades over which the defendant had no control and the plaintiff had failed to establish pretext, the employer was entitled to summary judgment on both the plaintiff s Title VII claim and her EPA claim. Riser v. QEP Energy, 776 F.3d 1191 (10th Cir. 2015). The plaintiff, an administrative services representative, alleged that she was subjected to pay discrimination based on gender and age. She performed fleet management and facilities management duties and received a salary of $47,382. Shortly before the plaintiff s termination, the defendant created separate fleet administrator and facilities manager positions, hired younger men for both positions, and paid them $62,000 and $66,000, respectively. Reversing summary judgment for the defendant on the plaintiff s EPA claim, the court held that genuine issues of fact existed regarding whether the plaintiff s job was substantially equal to those of her male comparators and whether the pay disparities were justified by a factor other than sex. Characterizing as especially disingenuous the defendant s assertion that the plaintiff lacked proper comparators, the court noted that the

11 11 defendant had essentially bifurcated the plaintiff s position into two positions that it filled with male employees compensated at significantly higher rates. The defendant also failed to establish an affirmative defense so clearly that no rational jury could disagree. The defendant contended that the pay differentials were based on its gender-neutral pay classification system, its reliance on one comparator s prior salary, and the other comparator s rejection of its initial offer. The court noted, however, that the plaintiff s pay grade was based not on the duties she was actually performing but on those typically performed by an administrative assistant, even though her supervisors knew she was not performing administrative assistant duties and she had twice asked, to no avail, that her pay grade be reevaluated. Because prior salary, standing alone, does not justify a pay differential under the EPA, the defendant could not rely solely on one comparator s prior salary to justify paying him 31% more than it paid the plaintiff. The defendant also could not rely on the other comparator s rejection of an initial salary offer, as that accounted for no more than $3,500 of the $18,618 pay difference between him and the plaintiff. EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247 (2d Cir. 2014). The EEOC alleged that the defendant paid female nonsupervisory attorneys less than their male counterparts in violation of the EPA. Affirming summary judgment for the defendant, the court held that the EEOC failed to establish that the work performed by female attorneys was substantially equal to the work performed by male attorneys. The EEOC contended that the female attorneys and male attorneys performed substantially equal work because they had the same job code; were subjected to the same experience, training, education, and ability requirements; were evaluated according to the same broad criteria; and had salary ranges determined by the same formula. The court noted, however, that the EEOC failed to provide evidence about the actual job content of the work performed by attorneys, and instead merely provided broad generalizations based on job titles and divisions. Ponamgi v. Safeguard Servs., L.L.C., 558 F. App x 878 (11th Cir. 2014). The plaintiff, a data analyst, alleged that she was paid less than her male counterparts in violation of the EPA. Affirming summary judgment for the defendant, the court held that the pay disparity was based on factors other than sex. In particular, the plaintiff had limited technical skills and experience and was unable to perform the work performed by other analysts in her classification. In addition, the higher-paid male employees were either hired after the defendant had received a new contract and raised starting salaries accordingly or they had the same salary that the plaintiff had started with and would have been receiving were it not for her poor performance. Maron v. Virginia Polytechnic Inst. & State Univ., 508 F. App x 226 (4th Cir. 2013). Three female fundraisers alleged that they were paid less than male fundraisers in violation of the EPA. Affirming the district court s reversal of a jury verdict, the appeals court held that the plaintiffs failed to establish that the district court committed clear error in determining that the clear weight of the evidence supported the employer s affirmative defense. The employer presented evidence of four male employees who performed the same work as the plaintiffs but were paid less than all three plaintiffs, and of one male employee who was paid less than two of the plaintiffs. As to the three male comparators identified by the plaintiffs, two of the comparators

12 12 had numerous years of relevant experience that the plaintiffs did not have, and the third comparator had earned a higher salary in a previous position. In addition, supervisors testified about the gender-neutral factors considered when establishing an employee s salary, and this testimony was corroborated by the actual hiring recommendations made involving the plaintiffs, which referenced education, experience, and comparable market salaries. While the plaintiffs contended that the employer could only establish its affirmative defense by submitting evidence of the actual compensation recommendations made when the male comparators were hired, the court explained that the employer was not required to produce the best evidence to demonstrate that it based compensation decisions on gender-neutral factors but rather was only required to prove that it was more likely than not that gender-neutral factors were used in setting the salaries of the plaintiffs and male comparators. Foco v. Freudenberg-NOK Gen. P ship, 549 F. App x 340 (6th Cir. 2013). The plaintiff alleged that she was paid substantially less than male applications engineers and account managers. Affirming summary judgment for the employer, the court held that the pay disparity was based on factors other than sex. In particular, the male employees had greater skill, experience, and qualifications than the plaintiff. In some cases, they also had greater job responsibilities. The plaintiff, who had little to no sales experience, was assigned minor accounts for which any mistakes would not harm the company, while the male account managers, who had more experience, were assigned significant accounts that generated millions of dollars of revenue for the employer. Murphy v. Ohio State Univ., 549 F. App x 315 (6th Cir. 2013). The plaintiff, a dispatcher, alleged that she was paid less than a newly hired male dispatcher. Affirming summary judgment for the employer, the court held that the pay disparity was based on experience. The newly hired male dispatcher, who had nine years of experience, was given the same hourly pay as dispatchers with nine to ten years of experience. The plaintiff, who had two years of part-time experience, was paid $0.50 per hour more than a male dispatcher with one and a half years of experience. The employer s reliance solely on years of dispatcher experience to set pay, rather than on total years of work experience, education, type of dispatching experience, or familiarity with the employer s operations, failed to render its compensation system arbitrary or capricious. Relevant work experience qualifies as a factor other than sex sufficient to justify pay disparities between male and female employees. Warf v. U.S. Dep t of Veterans Affairs, 713 F.3d 874 (6th Cir. 2013). Affirming summary judgment for the employer, the court concluded that the plaintiff failed to establish that she and a male colleague performed substantially similar jobs. Although the plaintiff, a program assistant, and a male education program specialist performed some similar duties, the male employee implemented professional development training and education, while the plaintiff performed administrative assistant tasks. In addition, salaries were based on experience and education, and the male comparator had a master s degree in business and seven years of teaching experience, while the plaintiff had an associate s degree.

13 13 Keller v. Crown Cork & Seal USA, Inc., 491 F. App x 908 (10th Cir. 2012). The plaintiff, a purchasing clerk manager (PCM), alleged that she was paid significantly less than her male predecessor. When the plaintiff reported the pay disparity to her supervisor and asked if it was because of her gender, her supervisor told her to stop complaining because she made more than 90 percent of the women in Worland, Wyoming. Affirming summary judgment in favor of the employer, the court held that the plaintiff s job was not substantially equal to her male predecessor s, noting that the plaintiff admitted that she did not perform certain PCM duties, including reading and transmitting bulk tank reports, preparing spoilage reports, and ordering raw metal, and that other employees assisted her in performing some of her duties. King v. Acosta Sales & Mktg., Inc., 678 F.3d 470 (7th Cir. 2012). The court reversed summary judgment for the employer on the plaintiff s EPA claim. The employer had asserted that pay disparities between male and female business managers were attributable to the males superior education and experience. Concluding that the district court had erred in requiring the plaintiff to show that the employer s asserted reasons were a pretext for sex discrimination, the appeals court returned the plaintiff s EPA claim for a trial at which the employer would need to prove, and not merely assert, that education and experience accounted for the pay disparities. King v. Univ. Healthcare Sys., L.C., 645 F.3d 713 (5th Cir. 2011). The court upheld a jury verdict for the plaintiff, an anesthesiologist, on her claim that the employer violated the EPA by not paying her for extra hours she worked following Hurricane Katrina, where the jury also concluded that the same practice did not violate Title VII. According to the employer, the plaintiff was not paid the extra-hours bonus because she did not sign an extension contract. The court noted that the different allocations of burdens of proof in EPA and Title VII claims could result in a plaintiff s prevailing on an EPA claim but not a Title VII claim. If a plaintiff establishes a prima facie case under both Title VII and the EPA, the defendant bears the burden of persuasion under the EPA to establish an affirmative defense. Under Title VII, by contrast, the employer only bears the burden of production to show a legitimate, nondiscriminatory reason for its action, and the ultimate burden of persuasion remains with the plaintiff to show that the defendant violated Title VII. In this case, the employer s evidence supporting its affirmative defense consisted mostly of testimony by employees that a male comparator who did not sign an extension contract was paid the bonus because they believed he would sign the contract. Holding that the jury s verdict was not clear error, the court stated that the jury s broad authority permitted it to find that the testimony was not credible and that the employer therefore did not establish the affirmative defense. Price v. N. States Power Co., 664 F.3d 1186 (8th Cir. 2011). Affirming summary judgment for the employer on the four plaintiffs EPA and Title VII claims, the court held that the plaintiffs failed to establish a prima facie case and that the evidence also established the employer s affirmative defense. Three of the plaintiffs, along with 15 men, worked as field representatives at the employer s Chesnut Service Center, and the fourth plaintiff, along with two men, was a field representative at the St. Cloud Service Center. In concluding that the Chesnut plaintiffs had failed to establish a prima facie case, the court noted that while the plaintiffs had contended that they were not similarly situated to four male field representatives, they had not established why

14 14 those men were not proper comparators; they had not separated men working at the Chesnut facility from men working at the St. Cloud facility; and the Chesnut plaintiffs had not distinguished field representatives who performed investigations in addition to duties shared by all representatives. The court also noted that some male representatives were higher paid because of legitimate differences in starting salaries, including the employer s red circling policy, which allowed employees to keep their salaries when transferring to field representative positions, or because of performance-based raises. Finally, the court concluded that the St. Cloud plaintiff had not established a prima facie case because she was the highest-paid representative at her facility and she could not properly compare herself to male workers at the Chesnut facility. The St. Cloud plaintiff contended that the two facilities were the same establishment because between 1998 and 2006 the same individual supervised representatives at both locations and made compensation decisions as to those employees. Disagreeing, the court concluded that the two facilities were separate establishments because they were approximately 75 miles apart and served different customers; field representatives did not transfer between the two locations; and each center had had its own supervisor for the past three years. See also Collins v. Dollar Tree Stores, Inc., 788 F. Supp. 2d 1328 (N.D. Ala. 2011) (in EPA class case brought by store managers, court held that single establishment existed at the district level (10 to 15 stores per district) but not at the national level (318 districts), based on district manager s role in hiring, placing, disciplining, evaluating, and setting the pay for store managers); Renstrom v. Nash Finch Co., 787 F. Supp. 2d 961 (D. Minn. 2011) (holding that distribution centers were separate establishments because a corporation s ultimate oversight over compensation and personnel decisions is commonplace and therefore such a practice did not overcome the ordinary and well-settled rule that physically distinct locations are different establishments for purposes of the EPA); EEOC v. Guardsmark L.L.C., 2011 WL (S.D. Tex. May 3, 2011) (guards assigned to various client locations by the defendant did not work at single establishment ). But see Grover v. Smarte Carte, Inc., 836 F. Supp. 2d 860 (D. Minn. 2011) (reasonable fact finder could infer that employees at different locations worked at same establishment where they performed similar work and reported to the same supervisor). Yant v. U.S., 588 F.3d 1369 (Fed. Cir. 2009). Affirming summary judgment for the Department of Veterans Affairs (VA) on the EPA claims of 35 nurse practitioners (NPs), the court held that the pay differential between predominantly female NPs and predominantly male physician assistants (PAs) was neither historically nor presently based on sex. The court found that the pay differential was based on two separate pay scales a nationally based pay scale for PAs and a regionally based pay scale for NPs and that there was no evidence that the decision to use these pay scales had any basis in sex. Stating that the plaintiffs reliance on statistical disparities did not establish the existence of sex-based discrimination, the court concluded that the plaintiffs failed to make out a prima facie case. In a concurrence, Judge Prost criticized the majority for improperly requiring the plaintiffs to establish discriminatory intent and for failing to recognize the fundamental difference between establishing a prima facie case and ultimate success on the merits. Judge Prost nonetheless concurred in the result since, given the significant participation of each gender in both classes (e.g., 40% of PAs were women), the plaintiffs failed to establish that the VA paid different wages to employees of the opposite sex.