REPORT OF THE EQUAL PAY ACT SUBCOMMITTEE … Case Law from January 1, 2009 through December 31, ......

REPORT OF THE EQUAL PAY ACT SUBCOMMITTEE

of the ABA SECTION OF LABOR AND EMPLOYMENT LAW

FEDERAL LABOR STANDARDS LEGISLATION COMMITTEE

February 2010

Covering Case Law from January 1, 2009 through December 31, 2009

Laura B. Friedel Subcommittee Chair

LEVENFELD PEARLSTEIN, LLC 2 North LaSalle Street, Suite 1300

Chicago, Illinois 60602 (312) 476-7510

[email protected]

Michael J. Ball Brandon R. Gibbs Lauren P. Harris VORYS, SATER, SEYMOUR AND

PEASE LLP 52 East Gay Street Columbus, Ohio 43215 (614) 464-6400 Michelle Q. Carter CARTER, CARTER, FRIES &

GRUNSCHLAG 44 Montgomery Street, Suite 2500 San Francisco, CA 94104 (415) 989-4800 Steven Copley RC AND ASSOCIATES, LTD. P.O. Box 909 Little Rock, Arkansas 72203 (501) 626-9220 Ashley Eddy SCHIFF HARDIN LLP 6600 Sears Tower Chicago, Illinois 60606 (312) 258-5500

Michelle LeBeau Gillian Yee OGLETREE DEAKINS Governor’s Place 33 Bloomfield Hills Parkway Suite 120 Bloomfield Hills, Michigan 48304 (248) 593-6400 Angela J. Rapp VORYS, SATER, SEYMOUR AND

PEASE LLP 221 East Fourth Street Suite 200, Atrium Two Cincinnati, Ohio 45202 (513) 723-4000 Domenick Vita 553 Martling Avenue Tarrytown, New York 10591 (914) 649-3349 Thomas M. Wood BURR & FORMAN LLP The Heritage Building 401 E. Capitol St., Suite 100 Jackson, Mississippi 39201 (601) 355-3434

TABLE OF CONTENTS

I. INTRODUCTION............................................................................................................ 1

II. THE EQUAL PAY ACT’S COVERAGE...................................................................... 1

A. General.................................................................................................................. 1 Mayfield v. Regional Univ. System of Okla., No. CIV-08-581, 2009 WL 1212274 (W.D. Okla. April 30, 2009) ....................................................................................................................... 1 Quitoriano v. Raff & Becker, LLP, No. 09-cv-5507, 2009 WL 5124865 (S.D.N.Y. Dec. 29, 2009) .......................................................................................................................................... 2 Yant v. United States, 85 Fed.Cl. 264 (2009) .................................................................................. 2 Yant v. United States, 588 F.3d 1369 (C.A. Fed. Dec. 14, 2009).................................................... 2 Spann-Wilder v. City of North Charleston, No. 2:08-0156, 2009, WL 3166528 (D.S.C. Sept. 29, 2009) ................................................................................................................................. 3 B. Individual Liability .............................................................................................. 3 Converse v. City of Oklahoma City, 649 F.Supp. 2d 1310 (W.D. Okla. Jul. 23, 2009)................. 3 Johnson v. Bibb City Bd. of Ed., No. 05:07-cv-425, 2009 WL 1885052 (M.D. Ga. June 29, 2009) .......................................................................................................................................... 3 Dixon v. University of Toledo, 638 F. Supp. 2d 847 (N.D. Ohio 2009) ......................................... 4

III. COURT ENFORCEMENT............................................................................................. 4

A. Arbitration............................................................................................................ 4

B. Employees of the States ....................................................................................... 4 Tasbas v. Nicholson, No. 06-cv-6236, 2009 WL 1458463 (W.D.N.Y. May 26, 2009) .................. 4

IV. THE PRIMA FACIE CASE ............................................................................................ 5 Baker v. Ruan Transport Corporation, No. 3:08-cv-425, 2009 WL 200 769 (E.D. Tenn. Jan. 27, 2009)................................................................................................................................... 5 Taylor v. St. Louis County Board of Election Commissioners, No. 4:07-cv-1544, 2009 WL 1176298 (E.D. Mo. Apr. 30, 2009)........................................................................................... 5 A. Different Wages to Employees of the Opposite Sex.......................................... 6 Diaz-Figueroa v. Ricoh Puerto Rico, No. 08-1302, 2009 WL 3245448 (D. P.R. Oct. 7, 2009) ................................................................................................................................................ 6 Kanhoye v. Altana Inc., et al., No. 01-579, 2009 WL 910663 (E.D. La. Apr. 2, 2009) .................. 6 Lee v. City of Syracuse, 603 F. Supp. 2d 417 (N.D.N.Y. Mar. 25, 2009)...................................... 6 Harris, et al. v. Auxilium Pharm., Inc., No. CIVA 4:07-cv-3938, 2009 WL 315 275 (S.D. Tex. Sept. 28, 2009)........................................................................................................................ 7 Emswiller v. Great Eastern Resort Corp., 602 F. Supp. 2d 737 (W.D. Va. Mar. 17, 2009) ............ 7 Ganheart v. Xavier Univ., No. 07-9703, 2009 WL 24227 (E.D. La. Jan. 2, 2009) ......................... 7 Balding-Margolis v. Cleveland Arcade, No. 09-3017, 2009 WL 3735902 (6th Cir. Nov. 9, 2009) ............................................................................................................................................ 8 Yant v. United States, 85 Fed.Cl. 264 (2009) .................................................................................. 8 Yant v. United States, 588 F.3d 1369 (C.A. Fed. Dec. 14, 2009).................................................... 8

Prise v. Alderwoods Group, 657 F. Supp. 2d 564 (W.D. Pa. Sept. 21, 2009) ................................. 9 Bronzini v. Classic Security LLC, No. 07 Civ. 11104, No. 08 Civ. 475, 2009 WL 102140 (S.D.N.Y. Jan. 15, 2009).................................................................................................................. 9 Brown v. Clarke Power Services, Inc., No. 1:07-cv-1039, 2009 WL 1394839 (S.D. Ohio May 18, 2009)................................................................................................................................ 10 B. Equal Work on Jobs Requiring Equal Skill, Effort, and Responsibility...... 10 Brown v. Macon-Bibb County Planning & Zoning Com'n, No. 5:07-cv-161, 2009 WL 1951060 (M.D. Ga. July 6, 2009) .................................................................................................. 10 Bustos v. Whitley Cty. Consolidated Schools, No. 1:07-cv-116, 2009 WL 214338 (N.D. Ind. Jan. 28, 2009) ......................................................................................................................... 10 Byrne v. Telesector Resources Group, Inc., 339 Fed.Appx. 13 (2d Cir. July 14, 2009) .............. 11 Conti v. American Axle & Mfg., 326 Fed.Appx. 900 (6th Cir. May 22, 2009) ............................ 11 Converse v. City of Oklahoma City, 649 F. Supp. 2d 1310 (W.D. Okla. July 23, 2009).............. 11 Mayfield v. Regional Univ. System of Okla., No. CIV-08-581, 2009 WL 1212274 (W.D. Okla. Apr. 30, 2009) ...................................................................................................................... 11 Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL55949 (M.D. Pa. Jan. 7, 2009)............................................................................................................................. 12 Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2194521 (M.D. Pa. July 22, 2009)................................................................................................................ 12 Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2242364 (M.D. Pa. Jul. 23, 2009)................................................................................................................. 12 Geist v. Gill/Kardash Partnership, LLC, No. CCB-08-183, 2009 WL 4342519 (D. Md. Nov. 24, 2009) ............................................................................................................................... 13 Wallace v. Medical Center of Louisiana at New Orleans, et al., No. 01-579, 2009 WL 910663 (E.D. La. Apr. 2, 2009) ..................................................................................................... 14 Mayden v. Superior Ambulance Service, 647 F. Supp. 2d 1014 (N.D. Ind. July 10, 2009)......... 14 Ganheart v. Xavier Univ., No. 07-9703, 2009 WL 24227 (E.D. La. Jan. 2, 2009) ....................... 15 Glodek v. Jersey Shore State Bank, No. 4:07-cv-2237, 2009 WL 2778286 (M.D. Pa. Aug. 28, 2009) ........................................................................................................................................ 15 Prewitt v. Mississippi State Univ., No. 1:06-cv-338, 2009 WL 804742 (N. D. Miss Mar. 25, 2009) ........................................................................................................................................ 15 Prise v. University of Michigan Prise v. Alderwoods Group, 657 F. Supp. 2d 564 (W.D. Pa. Sept. 21, 2009) ......................................................................................................................... 16 Boward-Wedge v. Aquarion Operating Services Company, No. 07-10628, 2009 WL 3497809 (D. Mass. Sept. 17, 2009) .............................................................................................. 16 Bronzini v. Classic Security LLC, No. 07 Civ. 11104 and No. 08 Civ. 475, 2009 WL 102140 (S.D.N.Y. Jan. 15, 2009).................................................................................................. 16 LaBeach v. Wal-Mart, No. 5:07-cv-12, 2009 WL 902030 (M.D. Ga. Mar. 27, 2009)................. 17 Bowers v. Medical Park Center Pharmacy, No. 07-cv-471, 2009 WL 2916893 (N.D. Okla. Sept. 4, 2009) ....................................................................................................................... 17 Wildi v. Alle-Kiski Medical Center, No. 08-284, 2009 WL 3053714 (W.D. Pa. Sept. 18, 2009) .............................................................................................................................................. 18 Jamilik v. Yale University, No. 08-5818, 2009 WL 3228775 (2d Cir. Oct. 8, 2009).................... 18 C. Similar Working Conditions............................................................................. 18

Mayfield v. Regional Univ. System of Okla., No. CIV-08-581, 2009 (W.D. Okla. April 30, 2009) ........................................................................................................................................ 18

V. DEFENSES..................................................................................................................... 19

A. Seniority System................................................................................................. 19 Balding-Margolis v. Cleveland Arcade, No. 09-3017, 2009 WL 3735902 (6th Cir. Nov. 9, 2009) .......................................................................................................................................... 19 Tasbas v. Nicholson, No. 06-cv-6236, 2009 WL 1458463 (W.D.N.Y. May 26, 2009) ............... 19 B. Merit System....................................................................................................... 20 Thomas v. U.S., 86 Fed.Cl. 633 (Apr. 1, 2009) ............................................................................ 20 Thomas v. U.S., No. 2009-5093, 2009 WL 3634196 (Fed.Cir. Nov. 4, 2009).............................. 20 Wildi v. Alle-Kiski Medical Center, No. 08-284, 2009 WL 3053714 (W.D. Pa. Sept. 18, 2009) .............................................................................................................................................. 20 Atkins v. Nicholson, No. 07 C 5963, 2009 WL 632184 (N.D. Ill. Mar. 9, 2009) ........................ 21 C. System Pegging Earnings to Quantity of Production ..................................... 21 Glodek v. Jersey Shore State Bank, No. 4:07-cv-2237, 2009 WL 2778286 (M.D. Pa. Aug. 28, 2009) ............................................................................................................................... 21 D. Factors Other Than Sex .................................................................................... 21 Converse v. City of Oklahoma City, 649 F.Supp. 2d 1310 (W.D. Okla. Jul. 23, 2009)............... 21 Mahan v. Peake, No. 07-15223, 2009 WL 174130 (E.D. Mich. Jan. 23, 2009) ........................... 21 Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL55949 (M.D. Pa. Jan. 7, 2009)............................................................................................................................. 22 Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2194521 (M.D. Pa. July 22, 2009)................................................................................................................ 22 Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2242364 (M.D. Pa. Jul. 23, 2009)................................................................................................................. 22 LaBeach v. Wal-Mart, No. 5:07-cv-12, 2009 WL 902030 (M.D. Ga. Mar. 27, 2009)................ 24 Johnson v. Bibb City Bd. of Ed., 2009 WL 1885052 (M.D. Ga. June 29, 2009) ........................ 25 Harris, et al. v. Auxilium Pharm., Inc., No. CIVA 4:07-cv-3938, 2009 WL 315 275 (S.D. Tex. Sept. 28, 2009)...................................................................................................................... 25 Glodek v. Jersey Shore State Bank, No. 4:07-cv-2237, 2009 WL 2778286 (M.D. Pa. Aug. 28, 2009) ........................................................................................................................................ 26 Drum v. Leeson Elec. Corp., 565 F.3d 1071 (8th Cir. May 15, 2009) ......................................... 26 Gresham v. Florence, 319 Fed. Appx. 857 (11th Cir. Mar. 19, 2009).......................................... 27 EEOC v. Home Depot U.S.A., No. 4:07-cv-0143, 2009 WL 395835 (N.D. Ohio Feb. 17, 2009) .............................................................................................................................................. 27 Ebbert v. Nassau Co., No. 05-cv-5445, 2009 WL 935812 (E.D.N.Y. Mar. 31, 2009) ................. 28 Balding-Margolis v. Cleveland Arcade, No. 09-3017, 2009 WL 3735902 (6th Cir. Nov. 9, 2009) .......................................................................................................................................... 28 Taylor v. St. Louis County Board of Election Commissioners, No. 4:07-cv-1544, 2009 WL 1176298 (E.D.Mo. Apr. 30, 2009)......................................................................................... 29 Tasbas v. Nicholson, No. 06-cv-6236, 2009 WL 1458463 (W.D.N.Y. May 26, 2009) ............... 29 Moorehead v. US, 88 Fed. Cl. 614 (Fed. Cl. Sept. 3, 2009) ......................................................... 29

Neview v. D.O.C. Optics Corp., No. 07-12302, 2009 WL 242672 (E.D. Mich. Mar. 19, 2009) .............................................................................................................................................. 30 Allen v. Garden City Co-Op, Inc., 651 F.Supp. 2d 1249 (D. Kan. Aug. 27, 2009)...................... 30 Atkins v. Nicholson, No. 07 C 5963, 2009 WL 632184 (N.D. Ill. Mar. 9, 2009) ........................ 31 Bowers v. Medical Park Center Pharmacy, No. 07-cv-471, 2009 WL 2916893 (N.D. Okla. Sept. 4, 2009) ....................................................................................................................... 31 Jamilik v. Yale University, No. 08-5818, 2009 WL 3228775 (2d Cir. Oct. 8, 2009).................... 31 Clemente v. Oregon Dept. of Corrections, 315 Fed. Appx. 657 (9th Cir. March 2, 2009)............ 32

VI. PRETEXT....................................................................................................................... 32 Prewitt v. Mississippi State Univ., No. 1:06-cv-338, 2009 WL 804742 (N.D. Miss Mar. 25, 2009) ........................................................................................................................................ 32 Allen v. Garden City Co-Op, Inc., 651 F.Supp. 2d 1249 (D. Kan. Aug. 27, 2009)...................... 33 Johnson v. Bibb City Bd. of Ed., No. 5:07-CV-425, 2009 WL 1885052 (M.D. Ga. June 29, 2009) ........................................................................................................................................ 33 Clemente v. Oregon Dept. of Corrections, 315 Fed. Appx. 657 (9th Cir. March 2, 2009)............ 33

VII. STATUTE OF LIMITATIONS.................................................................................... 34 Wood v. Kaplan Properties, Inc., No. 09-1941, 2009 WL 3230267 (D.N.J. Sept. 29, 2009) .............................................................................................................................................. 34 Jappa v. California, 2009 WL 69312 (S.D. Cal. Jan. 8, 2009)..................................................... 34 Ikossi-Anastasiou v. Bd. of Sup. of La. State Univ., 579 F.3d 546 (5th Cir. Aug. 18, 2009) .............................................................................................................................................. 35 Prewitt v. Mississippi State Univ., No. 1:06-cv-338, 2009 WL 57087 (N.D. Miss Jan. 7, 2009) .............................................................................................................................................. 35 Jamilik v. Yale University, No. 08-5818, 2009 WL 3228775 (2d Cir. Oct. 8, 2009).................... 36

VIII. DAMAGES ..................................................................................................................... 36 Todaro v. Siegel Fenchel & Peddy, et. al., P.C., No. 04-cv-2939, 2009 WL 3150408 (E.D.N.Y. Sept. 25, 2009).............................................................................................................. 36 King v. University Healthcare System, No. 08-1060, 2009 WL 2390880 (E.D. La. Aug. 3, 2009) .......................................................................................................................................... 36 Garcia v. Oasis Legal Finance Operating Co., No. 08 C 4973, 2009 WL 212119 (N.D. Ill. Jan. 26, 2009) ........................................................................................................................... 37 Garcia v. Oasis Legal Finance Operating Co., 608 F. Supp. 2d 975 (N.D. Ill. April 9, 2009) .............................................................................................................................................. 37 Allen v. Garden City Co-Op, Inc., 651 F. Supp. 2d 1249.............................................................. 37

IX. ADMINISTRATIVE ACTION..................................................................................... 38

X. COLLECTIVE ACTION.............................................................................................. 38 Halabicky et al. v. University of Michigan, No. 08-10065, 2009 WL 912629 (E.D. Mich. March 30, 2009)............................................................................................................................. 38

XI. RETALIATION ............................................................................................................. 38

Kennedy v. Virginia Polytechnic Inst. & State Univ., No. 7:08-cv-579, 2009 WL 1321691 (W.D. Va. May 12, 2009) ............................................................................................. 38 Allen v. Garden City Co-Op, Inc., 651 F.Supp. 2d 1249 (D. Kan. Aug. 27, 2009)...................... 39

XII. RELATED STATE LAW CLAIMS ............................................................................ 39

XIII. PROCEDURAL CONSIDERATIONS, MISC. .......................................................... 39

A. Amount in Controversy..................................................................................... 39

B. Evidence .............................................................................................................. 39 Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2242364 (M.D. Pa. July 23, 2009)................................................................................................................ 39 Smith v. Janey, et al, No. 06-1671, 2009 WL 2584821 (D.D.C. Aug. 24, 2009) ......................... 40 Byrne v. Telesector Resources Group, Inc., 339 Fed.Appx. 13 (2d Cir. July 14, 2009) .............. 41 C. Waiver and Release............................................................................................ 41

D. Estoppel and Res Judicata ................................................................................ 41 Brown v. Macon-Bibb County Planning & Zoning Com'n, No. 5:07-cv-161, 2009 WL 1241374 (M.D. Ga. 2009)............................................................................................................. 41 Harris, et al. v. Auxilium Pharm., Inc., No. CIVA 4:07-cv-3938, 2009 WL 315 275 (S.D. Tex. Sept. 28, 2009)...................................................................................................................... 42 F. Discovery............................................................................................................. 42

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I. INTRODUCTION

The equal pay provisions of the Fair Labor Standards Act, 29 U.S.C. § 206(d) (“Equal Pay Act”), require an employer to provide equal pay for men and women who perform equal work within an “establishment,” unless the difference is based on a factor other than sex. Because the Equal Pay Act is part of the Fair Labor Standards Act (“FLSA”), the FLSA procedural rules apply to Equal Pay Act claims.

To establish a prima facie case, a plaintiff must demonstrate that (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. See Corning Glass Works v. Brennan, 417 U.S. 188 (1974). If a prima facie case is established, the burden shifts to the employer to prove that the wage differential is justified by a preponderance of the evidence under one of four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system pegging earnings to quality or quantity of production; or (4) any factor other than sex. 29 U.S.C. § 206(d)(1)(i)-(iv).

Equal Pay Act claims are often combined with Title VII claims of sex discrimination in compensation. However, courts have found different essential elements and standards of proof for the two statutory claims.

II. THE EQUAL PAY ACT’S COVERAGE

A. General

Mayfield v. Regional Univ. System of Okla., No. CIV-08-581, 2009 WL 1212274 (W.D. Okla. April 30, 2009)

In Mayfield v. Regional University System of Oklahoma, the plaintiff, a tenured professor, brought suit claiming that the University’s failure to provide her with additional compensation for her service as Director of the Women’s Studies Minor violated the EPA, Title VII and state law. The U.S. District Court for the Western District of Oklahoma granted summary judgment in favor of the University.

Mayfield based her claim on her allegation that a male professor who was also the Director of the Leadership Studies Minor was given additional compensation for performing his duties as a Director. The defendants responded that the male comparator performed additional duties that the plaintiff was not required to perform, entitling him to additional compensation. The defendants also challenged Mayfield’s claim that one of the defendants, the Board of Regents, constituted her employer for purposes of Title VII and the EPA.

The court found that all of the defendants were proper. It held that generally the question of whether an entity qualifies as an employer is to be determined by the trier of fact. The court went on to analyze the relationship of the defendants under the “single employer” test, which looks at several factors, the main one being centralized control of labor relations, and determined that a jury could find that each of the defendants was the plaintiff’s employer. The court further found that the plaintiff’s failure to identify the Board of Regents in her EEOC charge did not preclude her claims against it because of an identity of interest. The court also pointed out that if

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the defendants were found to be a single employer, no showing of identity of interest would even be necessary.

Quitoriano v. Raff & Becker, LLP, No. 09-cv-5507, 2009 WL 5124865 (S.D.N.Y. Dec. 29, 2009)

In Quitoriano v. Raff & Becker, the U.S. District Court for the Southern District of New York granted the defendant’s motion to dismiss the pro se plaintiff’s complaint with prejudice. The plaintiff was a member of the Sheet Metal Workers’ International Association, Local 28. Since 1975, Local 28 has been subject to a court order requiring it to implement procedures to eliminate discrimination and achieve a certain minority membership percentage. An attorney who is a partner at the defendant’s law firm was appointed by the court as the Administrator in charge of implementing the 1975 order. Pursuant to that order, he was authorized to establish a system for work referral and employment, to conduct investigations, to decide any questions of interpretation, and to hear and determine complaints regarding the 1975 order and any programs implemented thereunder, including the job referral program of which the plaintiff complained. Plaintiff alleged that the referral program resulted in jobs going to younger, non-white males, thereby discriminating against her as a 44 year old female Caucasian. The plaintiff filed suit against the law firm for employment discrimination under Title VII, the Age Discrimination in Employment Act, and the EPA, and the law firm filed a motion to dismiss the complaint for failure to state a claim. The motion contended among other things, that the Administrator’s actions were protected by judicial immunity and that neither the Administrator nor his law firm was the plaintiff’s employer for purposes of the civil rights statutes relied upon.

The court granted defendant’s motion as to all claims, finding that the Administrator was immune from suit due to his performance of quasi-judicial functions pursuant to a court mandate which required legal knowledge and the exercise of related discretion. The court also agreed with the defendant that it could not be considered either an employer or a labor organization pursuant to the relevant laws. In discussing the EPA claim, the court referenced the statutory definition of an employer, which includes “any person acting directly or indirectly in the interest of an employer in relation to an employee and including a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.” The court held that in order for the defendant to be liable under the EPA, it would have to be found to be an employer, a labor organization acting as an employer, or an agent of such an organization acting as employer. Because the Administrator was an agent of the court, the court determined that he was not acting “directly or indirectly” in the interests of an employer or labor organization acting as an employer, nor was he an agent for any of them. As a result, the court found that the defendant did not meet the definition of an employer under the EPA.

Yant v. United States, 85 Fed.Cl. 264 (2009) Yant v. United States, 588 F.3d 1369 (C.A. Fed. Dec. 14, 2009)

In Yant v. United States, nurse practitioners employed by the Department of Veterans Affairs (VA) brought an action under the Equal Pay Act (EPA) alleging that they were paid lower wages than VA physicians assistants because of their gender. The district court granted summary judgment to the VA. The VA argued that there were substantial numbers of men and women among both the nurse practitioners and the physicians assistants and that the EPA was not

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intended to address pay disparities in mixed gender groups that included a “substantial number” of both men and women. The plaintiff countered that the EPA would protect groups that were predominantly of one sex, even if the group did include members of the opposite sex.

The court held that the plaintiffs did not qualify for coverage under the EPA. The court reasoned that because the case at issue presented a situation of two job classifications staffed by both men and women with substantial participation of both sexes in each, the EPA was not intended to remedy such a diffuse situation. “The EPA does not contemplate mixed-gender groups consisting of a substantial 20% participation of the putatively preferred sex in the lower-paid category and a substantial 40% participation of the putatively disadvantaged sex in the higher-paid category. Any other application to quantifying the ration of females to males sponsors an application of the EPA to mixed groups.” The court was careful to note that “no judicial bright lines have been drawn for the minimum gender ration that will defeat the protection afforded by the EPA.” The court also explained that “after a certain indefinable point, the integration within which each of the classes compared becomes such that any wage differential is clearly based on a factor other than sex.” On appeal the United States Court of Federal Claims affirmed the lower court’s grant of summary judgment to the defendant VA on different grounds.

Spann-Wilder v. City of North Charleston, No. 2:08-0156, 2009, WL 3166528 (D.S.C. Sept. 29, 2009)

The case of Spann-Wilder v. City of North Charleston looked at whether a part-time municipal judge was an independent contractor or an employee. The judge claimed discrimination based on race and sex and that the City retaliated against her by not reappointing her after she asked for a raise. After concluding that the plaintiff was not an independent contractor, the court determined that the real question was whether the plaintiff could pursue her claims based upon her status as a public officer and gave the parties 60 days to brief the issue of whether the plaintiff, as a public officer, met the definition of an “employee” for purposes of the causes of action as set forth in the complaint (including the EPA claim) and whether the plaintiff could pursue any steps through the administrative process available to “employees” of the state. The court specifically reserved decision on the merits for another day.

B. Individual Liability

Converse v. City of Oklahoma City, 649 F.Supp. 2d 1310 (W.D. Okla. Jul. 23, 2009)

In Converse v. City of Oklahoma City, the district court granted the city’s motion for summary judgment on the plaintiff’s EPA claim holding that the plaintiff, a female Executive Director for a school district, could not assert claims against individual supervisors because the EPA does not provide for personal liability.

Johnson v. Bibb City Bd. of Ed., No. 05:07-cv-425, 2009 WL 1885052 (M.D. Ga. June 29, 2009)

In Johnson v. Bibb City Board of Education, the U.S. District Court for the Middle District of Georgia granted summary judgment dismissing the EPA claims against one of the defendants, Plaintiff’s supervisor, who the plaintiff named personally. The court granted the Board’s motion

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finding that the plaintiff could only bring her EPA claims against the Board, and not her supervisor.

Dixon v. University of Toledo, 638 F. Supp. 2d 847 (N.D. Ohio 2009)

In Dixon v. University of Toledo, the female former Vice President of Human Resources for the University’s medical campus was discharged after she wrote and published an article contrary to a movement for certain rights and privileges for homosexuals because her views were deemed contrary to the “University's policies and procedures as well as its Core Values of the Strategic Plan which is mission critical.” She sued the University, its president and the vice president of human resources, and included claims under the Equal Pay Act, among others. The defendants moved to dismiss the individuals as defendants. The Northern District of Ohio dismissed the claims against the individual defendants because the individuals were not "employers" under the EPA. In dismissing the case against the individuals, the court followed the same interpretation of the definition of an “employer” as in FMLA and FLSA, under which the president and vice president would not have qualified as the plaintiff’s employer.

III. COURT ENFORCEMENT

A. Arbitration

B. Employees of the States

Tasbas v. Nicholson, No. 06-cv-6236, 2009 WL 1458463 (W.D.N.Y. May 26, 2009)

In Tasbas v. Nicholson, the plaintiff filed suit alleging employment discrimination under Title VII and the EPA. In her EPA claim she alleged that she was paid less than a male doctor, with more seniority, who performed the same work. The defendants moved for summary judgment on the basis of lack of subject matter jurisdiction since the plaintiff sought more than $10,000 in damages but district courts had subject matter jurisdiction concurrent with the US Court of Federal Claims, only over civil actions against the United States based upon “any Act of Congress,” “not to exceed $10,000.00 in amount.” The plaintiff argued that the court maintained jurisdiction since the EPA claim was joined with a Title VII claim. In granting summary judgment, the court held that it lacked subject matter jurisdiction and further held that the plaintiff’s claim lacked merit in any event because the discrepancy between the plaintiff’s salary and that of the single comparator was based upon years of service: The comparator had 15 years of additional service and the plaintiff’s salary eventually matched that of the comparator when the plaintiff reached his grade level based upon years of service.

Spann-Wilder v. City of North Charleston, No. 2:08-0156, 2009 WL 3166528 (D.S.C. Sept. 29, 2009)

The case of Spann-Wilder v. City of North Charleston looked at whether a part-time municipal judge was an independent contractor versus an employee. The suit claimed discrimination based on race and sex and that the City retaliated against Spann-Wilder by not reappointing her after she asked for a raise. After concluding the plaintiff was not an independent contractor, it held that the real question was whether the plaintiff could pursue her claims based upon her status as a public officer and gave the parties 60 days to brief the issue of whether the plaintiff, as a public

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officer, met the definition of an “employee” for purposes of the causes of action as set forth in the complaint (including the EPA claim) and whether the plaintiff could pursue any steps through the administrative process available to “employees” of the state. The court specifically reserved decision on the merits for another day.

IV. THE PRIMA FACIE CASE

Baker v. Ruan Transport Corporation, No. 3:08-cv-425, 2009 WL 200 769 (E.D. Tenn. Jan. 27, 2009)

In Baker v. Ruan Transport Corporation, the plaintiff, a part-time dispatcher for a transportation company, filed suit against her employer for violations of the Equal Pay Act claiming that when she expressed interest in a full-time position, she was offered less compensation than males were paid for the full-time dispatcher position. The defendant moved to dismiss because Baker compared her pay to that of full-time male employees when she was only a part-time employee. However, the court concluded that because a motion to dismiss requires the inquiry to take all well-pleaded allegations as true and construe them most favorably toward the plaintiff, her claims could move forward. The court found that the plaintiff could provide proof to overcome the distinction between the pay of part-time and full-time employees. The court further held that plaintiff made sufficient factual allegations regarding whether she performed equal work on jobs requiring equal skill, effort, and responsibility and whether she worked under conditions similar to those of the male employees. As such, the defendant’s motion was denied.

Taylor v. St. Louis County Board of Election Commissioners, No. 4:07-cv-1544, 2009 WL 1176298 (E.D. Mo. Apr. 30, 2009)

In Taylor v. St. Louis County Board of Election Commissioners, the plaintiff, who had a 20 year tenure with the Board, became the Democratic Director in 1998. The plaintiff acted as the Lead Director when the Governor was a Democrat and was not a Lead Director when the Governor was a Republican. From 2001 through 2003, the plaintiff and the Republican Director (male) received the same salary. In 2005, the Board recruited a Republican Judge for the Lead Director position. This comparator was planning to retire from the bench in 2006 but would not change his retirement plans to accept the Lead Director position for a salary less than a Circuit Court Judge ($6,000 more than the plaintiff’s salary). The Board agreed and the comparator became the Lead Director. The plaintiff remained as the Democratic Director until the Board voted unanimously to end her employment in early 2007. The plaintiff brought suit claiming she was discharged in violation of the public policy exception to Missouri’s employment at-will doctrine (Count I) and that she was paid lower wages than her male counterparts in violation of the EPA (Count II). The court had previously dismissed many of the claims, but the EPA claim against the Board remained.

The court concluded that a genuine issue of material fact existed regarding whether the plaintiff’s and the comparator’s jobs as directors had equal skills, effort and responsibility. The court further concluded that the Board failed to establish an affirmative defense where: (1) the record did not clearly delineate a difference in the position of the Lead Director (comparator) versus Director (Plaintiff), and Plaintiff did not receive a higher salary when she was the Lead Director; (2) while the comparator had significantly more education than the plaintiff, she had more experience with the Board than the comparator, and the Board failed to establish the extent to

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which any difference between the plaintiff and the comparator in terms of education and experience benefit the Director position so as to support the salary differential; and (3) the male comparator’s demand for a higher salary did not establish a clear need for the difference in salary.

A. Different Wages to Employees of the Opposite Sex

Diaz-Figueroa v. Ricoh Puerto Rico, No. 08-1302, 2009 WL 3245448 (D. P.R. Oct. 7, 2009)

In Diaz-Figueroa v. Ricoh Puerto Rico, the district court granted an employer’s motion for summary judgment finding that the plaintiff had not been paid less than male employees in the same position. The plaintiff, a female salesperson, alleged that she was paid less than her male comparators and that she was in the bottom third of all earners at the company because of her gender. However, the evidence showed that she had been paid the same or more than one or more of the male employees each year and that a number of women were in the top third of all earners, making as much, if not more, than other male salespersons. Thus, the court found that the plaintiff could not establish a prima facie case under the EPA.

Kanhoye v. Altana Inc., et al., No. 01-579, 2009 WL 910663 (E.D. La. Apr. 2, 2009)

In Kanhoye v. Altana Inc., the plaintiff requested and was allowed to transfer from the position of a general Compounder to the Sterile Compounding Department (which required “gowning up”). He made the transfer in reliance on an oral representation that he would receive a pay increase. Although the plaintiff received typical annual salary increases while employed in the Sterile Compounding Department, he did not receive a separate pay increase for “gowning up,” because the plaintiff’s voluntary transfer was a lateral move. The plaintiff brought action against his former employer and supervisors alleging race and gender discrimination and retaliation under Title VII, tortious interference with contractual relations, and violations of the Equal Protection Act (“EPA”).

The plaintiff’s EPA claim was based on his allegation that female employees were compensated for “gowning up” while he and other males were not so compensated. The plaintiff’s claim was based solely on his own testimony that an unspecified female colleague told him that she obtained additional compensation for “gowning up,” from which the plaintiff concluded an intent to discriminate on the basis of gender. The court concluded that even if the plaintiff could demonstrate disparate treatment, the defendants adequately explained that any compensation increases received by “gowning up” were the result of employees moving from a minimum salary in one department to a higher minimum salary in the new department. At the time of his voluntary transfer, the plaintiff’s salary as a general Compounder exceeded the minimum salary in the Sterile Compounding Department. Therefore, the plaintiff failed to establish a prima facie case for violation of the EPA and the court granted summary judgment to Defendants and dismissed Plaintiff’s gender discrimination claims.

Lee v. City of Syracuse, 603 F. Supp. 2d 417 (N.D.N.Y. Mar. 25, 2009)

In Lee v. City of Syracuse, the U.S. District Court for the Northern District of New York granted the city’s motion for summary judgment as to the plaintiff’s EPA claims. The court found that

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Lee failed to make a prima facie showing that the wage rates between sexes varied; acknowledging the defendant’s assertion that all wages are set rates according to union contracts and, thus, not in violation of the EPA. The plaintiff argued that although the rates were the same, she was denied overtime hours based on her sex. The court held that the disparate assignment of overtime hours based on sex does not violate the EPA. Accordingly, the court granted the defendant’s motion for summary judgment on the plaintiff’s EPA claim.

Harris, et al. v. Auxilium Pharm., Inc., No. CIVA 4:07-cv-3938, 2009 WL 315 275 (S.D. Tex. Sept. 28, 2009)

In Harris v. Auxilium Pharmaceuticals, the U.S. District Court for the Southern District of Texas found that the plaintiffs established sufficient issues of material fact to survive the defendant’s summary judgment motion and therefore denied the defendant’s motion as to the EPA claim.

The plaintiffs, a group of female medical sales consultants (MSCs), contended that Auxilium paid male MSCs more than female MSCs in violation of the EPA. While the plaintiffs proffered evidence that several male comparators were paid higher gross compensation, the defendant asserted that only some and not all male MSCs made more than the plaintiffs did. The defendant argued that because the plaintiffs’ comparison to some male MSCs was random, it was not sufficient to support their prima facie case. The court was not persuaded by the defendant’s arguments, finding it compelling that the defendant did not attempt to argue that these male MSCs who did make more had differing responsibilities or some other non-discriminatory rationale for the alleged anomaly. The court found that the plaintiffs made their prima facie claim of wage discrimination under the EPA and the burden shifted to the defendant to demonstrate the disparate pay resulted from factors other than sex. After analyzing and rejecting the defendant’s affirmative defenses, the court denied its motion and allowed Harris’ case to proceed.

Emswiller v. Great Eastern Resort Corp., 602 F. Supp. 2d 737 (W.D. Va. Mar. 17, 2009)

In Emswiller v. Great Eastern Resort Corporation, the U.S. District Court for the Western District of Virginia granted summary judgment to the employer because the plaintiff employee failed to establish that her male successors received unequal or greater pay. The female plaintiff was succeeded by three separate individuals, who seemed to (collectively) take over all of her responsibilities. The three successors, collectively, received pay exceeding the female employee, but separately they each were compensated less than the plaintiff. The district court refused to combine the three salaries to find unequal pay, examining closely the duties of each successor compared to the plaintiff. The court noted the specific duties or tasks were different, and the combined hours of weekly work were substantially greater than the female employee’s work while she held the single position, so the court found the work was different or unequal.

Ganheart v. Xavier Univ., No. 07-9703, 2009 WL 24227 (E.D. La. Jan. 2, 2009)

In Ganheart v. Xavier University, the court granted the employer’s motion for summary judgment finding that the plaintiff could not establish a prima facie case under the EPA. The plaintiff claimed that her hours were reduced making her ineligible for benefits while a male employee’s schedule was adjusted so that he could work continuously and maintain his benefits.

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The court found that the plaintiff's skill, effort and responsibility required for her part-time job were not substantially equal to the male comparator and found a complete absence of any competent evidence suggesting the plaintiff was paid less than any “similarly situated male employee,” finding it undisputed that the plaintiff and her alleged comparator were paid the same hourly rate. The court held that the EPA does not guarantee a part-time employee “the right to work a set number of hours.” The plaintiff's claim was not brought within two years, in any event, so her claims were time barred.

Balding-Margolis v. Cleveland Arcade, No. 09-3017, 2009 WL 3735902 (6th Cir. Nov. 9, 2009)

Plaintiff Balding-Margolis filed suit against Hyatt Corp. alleging, among other claims, wage discrimination during her employment as a server at the Hyatt Regency Cleveland restaurant - “The 1890.” The Sixth Circuit affirmed the district court’s grant of summary judgment to the defendant.

The court upheld dismissal of the plaintiff’s EPA claim because she “presented no evidence that she was paid less than co-workers outside of her protected class for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Critical to the court’s decision was the fact that the plaintiff was the only employee in her job position in Cleveland. The court rejected her attempts to show evidence of varying wages from employees outside of Cleveland, based on the definition of “establishment” in the statute. Because there were no comparable employees in Cleveland, the plaintiff could not show that non-protected employees held substantially equal jobs and were paid more. Nor could she point to any of the employees who were paid at a higher rate because they had greater seniority and earned a higher rate pursuant to a provision in their collective bargaining agreement. As such, the plaintiff failed to meet her prima facie case and summary judgment was appropriate.

Yant v. United States, 85 Fed.Cl. 264 (2009) Yant v. United States, 588 F.3d 1369 (C.A. Fed. Dec. 14, 2009)

In Yant v. United States, nurse practitioners employed by the Department of Veterans Affairs (VA) brought an action under the Equal Pay Act (EPA) alleging that they were paid lower wages than VA physicians assistants because of their gender. The district court granted summary judgment to the VA.

The VA argued that there were substantial numbers of men and women among both the nurse practitioners and the physicians assistants and that the EPA was not intended to address pay disparities in mixed gender groups that included a “substantial number” of both men and women. The plaintiff countered that the EPA would protect groups that were predominantly of one sex, even if the group did include members of the opposite sex.

The court held that the plaintiffs did not qualify for coverage under the EPA. The court reasoned that because the case at issue presented a situation of two job classifications staffed by both men and women with substantial participation of both sexes in each, the EPA was not intended to remedy such a diffuse situation. “The EPA does not contemplate mixed-gender groups consisting of a substantial 20% participation of the putatively preferred sex in the lower-paid

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category and a substantial 40% participation of the putatively disadvantaged sex in the higher-paid category. Any other application to quantifying the ration of females to males sponsors an application of the EPA to mixed groups.” The court was careful to note that “no judicial bright lines have been drawn for the minimum gender ration that will defeat the protection afforded by the EPA.” The court also explained that “after a certain indefinable point, the integration within which each of the classes compared becomes such that any wage differential is clearly based on a factor other than sex.”

On appeal the United States Court of Federal Claims affirmed the lower court’s grant of summary judgment to the defendant VA, but for a reason other than the gender ratio the district court relied on. Rather, the Court of Appeals found that the plaintiffs failed to make a prima facie case because they failed to raise a genuine issue of material fact that the pay difference between the NPs and the PAs is based on sex. The court noted that the PAs were paid on a national scale and the NPs were paid on a regional scale, resulting in a situation where in some regions, the predominantly female NPs actually made more than the predominantly male PAs. As such, summary judgment for the VA was upheld.

Prise v. Alderwoods Group, 657 F. Supp. 2d 564 (W.D. Pa. Sept. 21, 2009)

In Prise v. Alderwoods Group, two female funeral home employees filed suit alleging that the Alderwoods Group violated the Equal Pay Act by paying them less than similarly situated male location managers.

With respect to plaintiff Prise, the court found that the value of living accommodations (such as those provided to her male comparator) could properly be included in “wages” for purposes of the EPA. However, Prise had failed to show that she requested or was denied the living accommodations, or that the defendant would have been unwilling to have her reside on premises. As such, the court refused to consider the value of living accommodations in determining whether there was a pay disparity. In fact, the court found that when Prise’s estimated commissions were factored in, she was arguably making more than her male comparator. The court thus found it doubtful that Prise would be able to establish a prima facie case. In the end, though, Prise’s claim failed regardless because any disparity was explained by a difference in experience and length of service. As such, the court granted the defendant’s motion for summary judgment as to Prise’s EPA claim.

Bronzini v. Classic Security LLC, No. 07 Civ. 11104, No. 08 Civ. 475, 2009 WL 102140 (S.D.N.Y. Jan. 15, 2009)

In Bronzini v. Classic Security LLC, the male plaintiff brought suit claiming that the defendant violated the EPA by paying a female Fire Safety Director (“FSD”) at a higher rate, and Classic moved for summary judgment. Bronzini began his employment at Classic as a security officer with an initial salary of $9.00 per hour. He completed the FSD training course, received a certificate of completion, and passed the written FSD exam, and even though he had not completed the on-site exam required to complete the FSD training, the plaintiff received a raise to $12.00 per hour.

The court granted the defendants’ motion for summary judgment because the plaintiff was unable to establish the first required element of a prima facie case: that his employer paid

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different wages to employees of the opposite sex. The payroll records revealed that a female employee, who was a certified FSD, was paid more than he was, but she was not a similarly situated employee because she was actually certified, while the plaintiff had not taken the on-site exam required for FSD certification. Further, a male FSD was paid more than the plaintiff.

Brown v. Clarke Power Services, Inc., No. 1:07-cv-1039, 2009 WL 1394839 (S.D. Ohio May 18, 2009)

In Brown v. Clarke Power Services, Inc., Brown, the only female employee in her employer’s IT department, sued her former employer after she was discharged as part of a RIF. For her EPA claim, she alleged that two male employees in her department received higher base salaries than she did.

The court granted the defendant’s motion for summary judgment on the Brown’s claim because, while it was undisputed that the plaintiff’s base salary was lower than the two male employees, she also received a higher percentage of salary in bonus, which resulted in a higher total compensation package. The court held that it did not matter that her bonus was discretionary and that the Code of Federal Regulations includes bonus payments in the calculation of wages for purposes of the EPA. As such, the plaintiff failed to establish the required prima facie element that she received less pay than employees of the opposite sex performing substantially similar work.

B. Equal Work on Jobs Requiring Equal Skill, Effort, and Responsibility

Brown v. Macon-Bibb County Planning & Zoning Com'n, No. 5:07-cv-161, 2009 WL 1951060 (M.D. Ga. July 6, 2009)

In Brown v. Macon-Bibb County Planning & Zoning Commission, the district court granted a public employer’s motion for summary judgment on an EPA claim brought by a female employee who alleged her male co-worker received a higher salary. The plaintiff, who worked as a Zoning Director, contended that she was paid $15,000 per year less than her male co-worker, who worked as a Planning Director. Though the plaintiff and her male co-worker were responsible for a number of overlapping projects, the evidence showed that the male employee was responsible for at least three major tasks that the plaintiff did not have. Based on this evidence the court rejected the plaintiff’s comparable worth arguments, found that the two positions were not sufficiently similar, and granted the employer’s motion.

Bustos v. Whitley Cty. Consolidated Schools, No. 1:07-cv-116, 2009 WL 214338 (N.D. Ind. Jan. 28, 2009)

The court in Bustos v. Whitley denied the employer’s motion for summary judgment because there were genuine issues of material fact as to whether there were similarly situated male employees who were paid more. The plaintiff was a quasi-principal at an elementary school and was paid less than male principals. The employer argued that the plaintiff’s position, which did not have the formal title of principal, was not equal to the male comparators she identified as similarly situated. However, the evidence showed that she was regarded as a principal even though her title did not reflect it, and had many similar job duties as her male comparators. The court concluded that her EPA claim should be decided by the jury and the motion was denied.

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Byrne v. Telesector Resources Group, Inc., 339 Fed.Appx. 13 (2d Cir. July 14, 2009)

In Byrne v. Telesector, the court upheld the lower court’s grant of the defendant’s motion for summary judgment on plaintiff’s EPA claim because the plaintiff failed to establish a prima facie case. The court found that the plaintiff failed to offer any evidence detailing the job duties of the two male comparators she alleged were paid more than she, because she had only offered her own affidavit and evidence demonstrating that she had the same job title as one of her male co-workers who was paid more. The court noted that the plaintiff had failed to show equal job content with her male comparators, and that the same job title, without more detail, was not enough to establish a prima facie case.

Conti v. American Axle & Mfg., 326 Fed.Appx. 900 (6th Cir. May 22, 2009)

In Conti v. American Axle & Manufacturing, the Sixth Circuit upheld the district court’s order granting summary judgment in favor of the employer. The plaintiff, a female executive at a manufacturing company, received a number of different promotions and demotions over the course of her career at the company. She was eventually asked to fill a vacant position previously held by a male, but the job title of that position changed from Director to Manager when she transferred into it. She claimed that she should have been paid as much as her immediate predecessor, who held the Director title. However, both the trial court and the Sixth Circuit rejected her contentions because she did not present sufficient evidence that her male predecessor had the same job responsibilities as she. The employer presented evidence that the Director-level position required different skills and had more responsibilities than the Manager-level position that the plaintiff filled. In addition, the court noted that another male employee who held the Manager-level position, as opposed to the Director-level position, was actually paid less than she was. Thus, the plaintiff failed to establish a prima facie case under the EPA.

Converse v. City of Oklahoma City, 649 F. Supp. 2d 1310 (W.D. Okla. July 23, 2009)

In Converse v. City of Oklahoma City, the district court granted the city’s motion for summary judgment on a plaintiff’s EPA claim holding that the plaintiff, a female Executive Director for a school district, could not assert claims against individual supervisors because the EPA does not provide for personal liability. The court also rejected the plaintiff’s claims against the school district because she did not present sufficient evidence that she had the same job responsibilities because her male comparator, the Executive Director of another department because the comparator supervised 15 employees and had a number of other job responsibilities that the plaintiff did not have.

Mayfield v. Regional Univ. System of Okla., No. CIV-08-581, 2009 WL 1212274 (W.D. Okla. Apr. 30, 2009)

In Mayfield v. Regional University System of Oklahoma, the plaintiff, a tenured professor, brought suit claiming that the University’s failure to provide her with additional compensation for her service as Director of the Women’s Studies Minor violated the EPA, Title VII and state law. The U.S. District Court for the Western District of Oklahoma granted summary judgment in favor of the University.

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The court granted the defendants’ summary judgment motion, finding that the plaintiff and her male comparator had different working environments, and that the male comparator had additional duties which were different from the duties of the plaintiff. The court found that Mayfield had failed to show that she and her male comparator performed substantially equal work and was therefore unable to make a prima facie case.

Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL55949 (M.D. Pa. Jan. 7, 2009)

Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2194521 (M.D. Pa. July 22, 2009)

Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2242364 (M.D. Pa. Jul. 23, 2009)

In Lord v. Pennsylvania National Mutual Casualty Insurance, the U.S. District Court for the Middle District of Pennsylvania issued three separate orders regarding the viability of the plaintiff’s EPA claim and the evidence proffered in support. In its January 7, 2009 order, the court rejected the report of a Magistrate Judge recommending summary judgment in favor of The defendant on the plaintiff’s EPA claim, finding disputed issues. In its July 22, 2009 order, the court denied the defendant’s motion for reconsideration of its earlier ruling denying the defendant’s motion for summary judgment of the EPA claim, finding that the challenged order failed to contain any “manifest errors of law or fact.” Finally, in its July 23, 2009 order, the court denied the defendant’s motion in limine seeking to exclude evidence of harassment and comments regarding manipulation of its pay system by the plaintiff’s former supervisor, finding the evidence highly probative and admissible subject to a limiting instruction.

Lord was employed by the defendant as a manager of worker’s compensation. She brought suit under the EPA, alleging that she was compensated at a lower salary than a male co-worker who held an equivalent position. The defendant asserted that the positions were not equivalent, and that the pay disparity was based on a factor other than sex in that it used the Hays Point System in determining pay, which “objectively” calculated salary in reliance upon several variables, including job descriptions. In response, Lord argued that the Hays Point System was capable of manipulation and that it had been manipulated in her case by a former supervisor in order to punish her for harassment complaints.

In connection with the defendant’s summary judgment motion, the court first reviewed the burden shifting framework under the EPA and the heavy burden on a defendant to prevail on summary judgment. In reviewing the evidence, the court found that Lord had met her prima facie burden of showing that employees of opposite sexes were paid differently for equivalent work. The plaintiff showed that she was paid $25,000 less than her male comparator, and

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submitted memoranda from a former supervisor indicating that the two of them held substantively identical positions. The defendant argued that the positions were not equivalent because the male comparator had litigation management and cost-related duties that were not a part of the plaintiff’s job, but the court pointed out that the plaintiff’s evidence showed that she had what appeared to be similar responsibilities over managed care. The court found that the defendant’s evidence did not unequivocally show the two positions required unequal skill, effort and responsibility since it failed to describe the daily responsibilities of the two positions or the amount of time spent on the various duties. The defendant also relied on its Hay Points System to assert that its pay determinations were based on factors other than sex. However, Lord proffered evidence that a former supervisor had retaliated against her for harassment complaints by manipulating her job description and Hay Points, and the court concluded that reasonable jurors could differ on the objectivity of the Hay Points System and whether Lord’s pay was based on factors other than sex, and denied the summary judgment motion.

In the defendant’s motion for reconsideration, it argued that the court failed to account for the context of the memoranda prepared by the comparators’ former supervisor indicating that their positions were equivalent, that the court improperly placed the burden of proof on the defendant to show job dissimilarity, and that the court failed to account for the defendant’s evidence that the pay differential resulted from a factor other than sex. The court rejected all of the defendant’s arguments. Regarding the supervisor’s memoranda, the court found that “contextual interpretation” of the type requested by the defendant was a matter for the jury, not the court. In connection with the burden of proof, the court found that Lord had met her burden of showing similarity of positions as part of her prima facie case by proffering evidence that she and her male comparator had similar responsibilities, authority, and duties, including the memoranda from her supervisor and deposition testimony that the positions were operationally identical. The court determined that the defendant’s proffered evidence that the male comparator had an additional responsibility that was not a part of Lord’s position was not enough to defeat the plaintiff’s prima facie case, since it was not supported by the supervisor’s testimony and documents, and since the defendant failed to show how much time was spent on the additional job function as compared to the job functions the male comparator had in common with the plaintiff. With respect to the defendant’s factor “other than sex” affirmative defense, the court found that although the defendant proffered evidence that it used the Hay Point System to determine salary, Lord’s proffered evidence that she had been subjected to a pattern of harassment by a previous supervisor, which resulted in modifications of her Hay Points and job description could lead reasonable jurors could differ on each of these issues. As such, it found that denial of summary judgment of the EPA claim was proper.

Geist v. Gill/Kardash Partnership, LLC, No. CCB-08-183, 2009 WL 4342519 (D. Md. Nov. 24, 2009)

In Geist v. Gill/Kardash Partnership, LLC, the plaintiff, a golf instructor, brought an action against her former employer alleging gender discrimination, retaliation, and hostile work environment under Title VII, as well as violations of the Equal Pay Act (EPA) and the Employee Retirement Income Security Act (ERISA). The employer moved for summary judgment on all the plaintiff’s claims and the court granted the motion with respect to Geist’s EPA claims.

The court found that the plaintiff failed to establish a prima facie case under the EPA. In regards to a male golf instructor that Geist cited as a comparator, the court held that Geist did not show

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that she and the male instructor performed substantially equal jobs under similar working conditions. In addition to being a golf instructor, the male comparator was also an assistant manager with a set forty-hour workweek that included duties such as opening and closing the facility, handling inventory, and supervising other employees. Conversely, and per her own request, the plaintiff had a flexible fifteen-hour workweek in which she was responsible for handling the company’s marketing and performing counter duty. As a result of these different responsibilities and employment arrangements, the plaintiff and male instructor had different compensation structures. According to the court, such differences precluded Geist’s claim under the EPA, because she and the male instructor did not have substantially equal duties and responsibilities.

Wallace v. Medical Center of Louisiana at New Orleans, et al., No. 01-579, 2009 WL 910663 (E.D. La. Apr. 2, 2009)

In Wallace v. Medical Center of Louisiana at New Orleans, the plaintiff, an African-American male CFO of the medical center, brought suit claiming that the disparity in pay between himself and his predecessor and successor constituted discrimination in violation of Title VII and the Equal Pay Act (EPA). The alleged similarly-situated employees were two Caucasian females who performed the CFO duties prior to and subsequent to the plaintiff’s tenure as CFO. Both were paid at a higher rate than the plaintiff pursuant to a state uniform pay and classification plan.

After a bench trial, the district court found that the plaintiff failed to make his prima facie case under the EPA because he failed to show that he had substantially similar responsibilities when compared to the female employees. First, the trial court found that the woman who was CFO prior to the plaintiff’s appointment to the position had six additional departments that reported to her due to a merger that occurred during her tenure. These departments were reassigned elsewhere when the plaintiff was appointed to the CFO position, specifically to lessen the burden on him. Second, the court found that the woman who replaced the plaintiff once his detail as the acting CFO was terminated was never officially placed in the CFO position. Instead, she was given the CFO responsibilities in addition to responsibilities she already had in her official position as the Director of Patient Financial Services. Her salary, which was higher than that of the CFO, was based on the Director position. Therefore, the court concluded that the pay differential between the plaintiff and his alleged comparators was based on a valid state classification system, not race or gender.

Mayden v. Superior Ambulance Service, 647 F. Supp. 2d 1014 (N.D. Ind. July 10, 2009)

In Mayden v. Superior Ambulance Service, the U.S. District Court for the Northern District of Indiana denied the defendant’s motion for summary judgment with respect to the plaintiff’s Equal Pay Act claims. Mayden, a licensed EMT, worked for the defendant as a wheelchair van dispatcher, as well as performing additional duties as community relations liaison and as a fill-in EMT. Mayden resigned from her job claiming that she was being paid less than the male ambulance dispatcher, and was replaced by a male who was paid at a higher rate than Mayden had earned in the wheelchair van dispatcher position. Plaintiff filed suit alleging sex discrimination under Title VII and violation of the EPA. The defendant filed a motion summary

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judgment, contending that Mayden could not establish her claims and that its pay scale was based on non-prohibited criteria.

In considering Mayden’s EPA claims, the court analyzed her two male comparators separately. The first comparator, an ambulance dispatcher, was not a valid comparator because he had different and additional responsibilities, as well as different working conditions. As such, he could not serve as a comparator. However, the court found that there was evidence that the second alleged comparator, the wheelchair van dispatcher who replaced the plaintiff, performed equal work. The court further found that while the defendant proffered a non-sex-based factor for the pay disparity, namely the differences in education and experience, it had not met the heavy burden required to prevail on an affirmative defense at the summary judgment stage. The court therefore denied the motion as the plaintiff’s EPA claim regarding her male replacement.

Ganheart v. Xavier Univ., No. 07-9703, 2009 WL 24227 (E.D. La. Jan. 2, 2009)

In Ganheart v. Xavier University, the court granted the employer’s motion for summary judgment finding that the plaintiff could not establish a prima facie case under the EPA. The court found that the skill, effort and responsibility required for the plaintiff’s part-time job were not substantially equal to the male comparator. Based on this fact and others, the court found that summary judgment was appropriate.

Glodek v. Jersey Shore State Bank, No. 4:07-cv-2237, 2009 WL 2778286 (M.D. Pa. Aug. 28, 2009)

In Glodek v. Jersey Shore State Bank, the court denied the employer’s motion for summary judgment on a female employee’s claim that alleged intentional discrimination based on gender because a male employee who performed substantially equal work was paid more. The employer responded arguing that the male comparator had different skills, effort, responsibility, and working conditions. The court analyzed each of these elements of the plaintiff's prima facie case.

The district court rejected the employer’s contention that the male employee’s skill was vastly different than the plaintiff’s because the male employee produced at a high level and had contacts within his market that would prove profitable, and he was college educated and was trained by national mortgage companies. The court found these arguments that he was a “high producer” to be vague at best and found no evidence in the record that his college degree or training with a mortgage company was applicable based on the jobs at issue. The district court further rejected the employer’s argument that the plaintiff “did not exert the same effort as” the male comparator because the comparator had a more difficult market. The court stated that competition within a market does not necessarily indicate that one must work harder to produce business, and the court further noted that the defendant failed to address what additional physical burdens the male employee faced because of the greater competition within his assigned market. The court also rejected arguments that the female employee had less responsibility on the same grounds. Finding that the corporate office dictated conditions of employment for both the male and the female employee, the district court held that they had the same working conditions.

Prewitt v. Mississippi State Univ., No. 1:06-cv-338, 2009 WL 804742 (N. D. Miss Mar. 25, 2009)

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In Prewitt v. Mississippi State University, a female research assistant and Assistant Research Professor brought suit under the EPA. The University filed a motion for partial summary judgment seeking a ruling that Prewitt and her male comparator did not perform work requiring equal skill, effort and responsibility or that any difference was justified by factors other than sex. The University argued that though Prewitt and her comparator worked as research staff members in the same department and in some years held the same job title, the comparator’s research was more closely related to industry and had requirements imposed by the Environmental Protection Agency. It also argued that the comparator signed off on quality assurance and quality control reports for both his own and others’ work, and was in charge of selecting equipment and writing specifications for the equipment used, while Prewitt had none of these additional responsibilities. Prewitt disputed that she and her comparator performed different work and the court found that, taking the evidence in the light most favorable to the plaintiff, the work done by the two employees may have been substantially similar. As such, Prewitt established her prima facie case for purposes of summary judgment.

Prise v. University of Michigan Prise v. Alderwoods Group, 657 F. Supp. 2d 564 (W.D. Pa. Sept. 21, 2009)

In Prise v. Alderwoods Group, two female funeral home employees filed suit alleging that the Alderwoods Group violated the Equal Pay Act by paying them less than similarly situated male location managers. With respect to plaintiff Rady’s EPA claim, the court found that she failed to establish a prima facie case because she relied on the fact that she and her comparators had the same job description rather than presenting evidence of actual job requirements and duties. As such, the court granted the defendant’s motion for summary judgment with respect to Rady’s EPA claims.

Boward-Wedge v. Aquarion Operating Services Company, No. 07-10628, 2009 WL 3497809 (D. Mass. Sept. 17, 2009)

In Boward-Wedge v. Aquarion Operating Services Company, the plaintiff, who was hired as vice president of finance, sued her former employer under the Equal Pay Act, along with other claims, claiming that after accepting the position of vice president, she learned that four of the five other vice presidents earned a higher salary than she did. The defendant moved for summary judgment.

The court denied the defendant’s motion as it related to the EPA claims because plaintiff put forth evidence that (1) the defendant’s decision not to create a hierarchy of vice president and senior vice president demonstrated that the differences between the vice president positions was not substantial; (2) the CEO told her that she would receive the same pay as the other vice presidents, inferring that all of the vice presidents had similar skills, effort, and responsibilities; and (3) the defendant paid all of the area managers the same salary regardless of size, revenue, and years with the company.

Bronzini v. Classic Security LLC, No. 07 Civ. 11104 and No. 08 Civ. 475, 2009 WL 102140 (S.D.N.Y. Jan. 15, 2009)

In Bronzini v. Classic Security LLC, the male plaintiff brought suit claiming that the defendant violated the EPA by paying a female Fire Safety Director (“FSD”) at a higher rate, and Classic

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moved for summary judgment. Bronzini began his employment at Classic as a security officer with an initial salary of $9.00 per hour. He completed the FSD training course, received a certificate of completion, and passed the written FSD exam, and even though he had not completed the on-site exam required to complete the FSD training, the plaintiff received a raise to $12.00 per hour.

The court granted the defendants’ motion for summary judgment. While a female employee, who was a certified FSD, was paid more than the plaintiff, she was not a similarly situated employee because she was actually certified, while the plaintiff had not taken the on-site exam required for FSD certification. Further, a male FSD was paid more than the plaintiff.

LaBeach v. Wal-Mart, No. 5:07-cv-12, 2009 WL 902030 (M.D. Ga. Mar. 27, 2009)

In LaBeach v. Wal-Mart, the U.S. District Court for the Middle District of Georgia granted the defendant’s motion for summary judgment, finding that the plaintiff failed to make a prima facie showing of wage discrimination. The plaintiff’s evidence did not show that she and her male comparator, a male co-worker who was paid $6,000 more, had performed equal work or substantially similar jobs, and the court found that the plaintiff’s reliance solely on title similarity and lack of evidence as to actual job content was insufficient to establish a prima facie case. The court also determined that the defendant’s affirmative defense that the plaintiff’s male comparator had four years more experience with the company than the plaintiff was a compelling enough rationale based on a factor other than sex for the defendant to overcome the plaintiff’s prima facie case, had she been able to establish one. The plaintiff did not proffer evidence to rebut this affirmative defense or allege a pretext for the wage disparity. Accordingly, the court determined there were sufficient grounds to grant Wal-Mart’s motion for summary judgment.

Bowers v. Medical Park Center Pharmacy, No. 07-cv-471, 2009 WL 2916893 (N.D. Okla. Sept. 4, 2009)

In Bowers v. Medical Park Center Pharmacy, Bowers, the former director of operations for a pharmacy, brought suit against her former employer alleging wrongful termination, retaliation, disparate impact, and Equal Pay Act claims. The plaintiff’s annual salary was $72,000, but a male employee who was trained on her job responsibilities and then assumed her job duties when she was demoted was paid $100,000.

The defendants moved for summary judgment arguing that Bowers was unable to establish that she performed work substantially equal to the male employee she claimed as a comparator. The court disagreed, finding that (1) although the male comparator’s educational background was more extensive than the plaintiff’s, a direct relationship was not established between it and the work he performed; (2) there was conflicting testimony as to the comparator’s position and job functions; and (3) the plaintiff proffered evidence to show that the comparator’s job duties overlapped with hers sufficient to create an issue of fact. While the defendants also attempted to justify the salary disparity by arguing that the male employee performed job functions related to special projects and expansion, they failed to demonstrate sufficient evidence in this regard. As such, the court denied the defendants’ motion for summary judgment and allowed Bowers’ EPA claim to proceed.

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Wildi v. Alle-Kiski Medical Center, No. 08-284, 2009 WL 3053714 (W.D. Pa. Sept. 18, 2009)

In Wildi v. Alle-Kiski Medical Center, a former vice president of operations for a medical facility filed a lawsuit alleging that the Medical Center violated the EPA by paying her a base salary and bonus that were less than the other three male vice presidents, who she claimed performed equal work on jobs which required equal skill, effort and responsibility. The court held that the plaintiff established a prima facie case because she created a genuine issue of material fact that at least two of the vice presidents performed many duties similar to those she performed. Additionally, the court noted that they shared the title of vice president and started with the same initial base salary.

Because Wildi established a prima facie case, the burden shifted to the defendant to raise its affirmative defenses. The defendant first argued that all employees were paid the market value of their skills. The defendant argued that the two other vice presidents received higher compensation because of the small number of individuals who had the necessary skills and qualified for the positions they held. However, the plaintiff successfully argued that her job responsibilities were nearly identical to the other vice presidents and that her skill set was just as valuable. The court noted that she supported her contention with evidence that the defendant paid an identical base salary to the vice presidents for several years after the positions were first established. Accordingly, the court rejected this defense. Nor was the court convinced by the defendant’s argument that bonuses were based on merit as there was evidence that bonuses were awarded as a percentage of base salary. As such, Wildi’s claim was permitted to proceed.

Jamilik v. Yale University, No. 08-5818, 2009 WL 3228775 (2d Cir. Oct. 8, 2009)

In Jamilik v. Yale University, the Second Circuit overturned the trial court’s grant of summary judgment to Yale. Jamilik, who is female, alleged that a male colleague had been paid more than she since August 1989, in violation of the EPA and Title VII. Yale did not dispute that the colleague was paid more but argued that this colleague’s responsibilities were different, defeating Jamilik’s prima facie case and constituting a “factor other than sex” on which the pay disparity was based.

The court found that while Yale pointed to evidence that the two positions were dissimilar, it did not present any evidence as to the comparability of the positions in 1989, when Jamilik and her comparator held the same grade, rank and title, and when the pay differential began. The failure to present evidence regarding the equivalence of the two positions at the time that the pay differential appeared was, according to the court, sufficient to raise an issue of fact on both Jamilik’s prima facie case and Yale’s affirmative defense. As such the court of appeals reversed the lower court’s grant of summary judgment and remanded.

C. Similar Working Conditions

Mayfield v. Regional Univ. System of Okla., No. CIV-08-581, 2009 (W.D. Okla. April 30, 2009)

In Mayfield v. Regional University System of Oklahoma, the plaintiff, a tenured professor, brought suit claiming that the University’s failure to provide her with additional compensation

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for her service as Director of the Women’s Studies Minor violated the EPA, Title VII and state law. The U.S. District Court for the Western District of Oklahoma granted summary judgment in favor of the University.


The court granted the defendants’ summary judgment motion finding that the plaintiff and her male comparator had different working environments, and that the male comparator had additional duties which were different from the duties of the plaintiff. The court found that Mayfield had failed to show that she and her male comparator performed substantially equal work and was therefore unable to make a prima facie case.

V. DEFENSES

A. Seniority System



The court upheld dismissal of the plaintiff’s EPA claim because she “presented no evidence that she was paid less than co-workers outside of her protected class for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Critical to the court’s decision was the fact that the plaintiff was the only employee in her job position in Cleveland. The court rejected her attempts to show evidence of varying wages from employees outside of Cleveland, based on the definition of “establishment” in the statute. Because there were no comparable employees in Cleveland, the plaintiff could not show that non-protected employees held substantially equal jobs and were paid more. Nor could she point to any of the employees who were paid at a higher rate because they had greater seniority and earned a higher rate pursuant to a provision in their collective bargaining agreement. As such, the plaintiff failed to meet her prima facie case and summary judgment was appropriate.


In Tasbas v. Nicholson, the plaintiff filed suit alleging employment discrimination under Title VII and the EPA. In her EPA claim she alleged that she was paid less than a male doctor with more seniority, who performed the same work. The defendants moved for summary judgment on the basis of lack of subject matter jurisdiction, as well as the substance of her claims. In

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granting summary judgment, the court held that it lacked subject matter jurisdiction and further held that the plaintiff’s claim lacked merit in any event because the discrepancy between the plaintiff’s salary and that of the single comparator was based upon years of service. The comparator’s 15 years of additional service, and the fact that the plaintiff’s salary eventually matched that of the comparator when the plaintiff reached his grade level based upon years of service, justified the pay differential.

B. Merit System

Thomas v. U.S., 86 Fed.Cl. 633 (Apr. 1, 2009) Thomas v. U.S., No. 2009-5093, 2009 WL 3634196 (Fed.Cir. Nov. 4, 2009)

In Thomas v. U.S., a female Department of Labor (“DOL”) employee claimed that three male colleagues were paid significantly more than she was, in violation of the EPA. The court held that even if the plaintiff established a prima facie case under the EPA, the material facts clearly showed that the DOL’s highly structured and regulated merit system, not gender, explained the pay disparity between the plaintiff and her comparators. Accordingly, the court granted the defendant’s motion for summary judgment.

On appeal, the plaintiff argued that the DOL’s system of hiring and promotion was not merit based; rather, she was discriminated against on the basis of gender. However, the appellate court concluded that the trial court correctly determined that any alleged pay differential fell into the EPA’s merit system exception. Accordingly, the court affirmed the trial court’s decision granting summary judgment in favor of the defendant.


In Wildi v. Alle-Kiski Medical Center, a former vice president of operations for a medical facility filed a lawsuit alleging that the Medical Center violated the EPA by paying her a base salary and bonus that were less than the three male vice presidents, who she claimed performed equal work on jobs which required equal skill, effort and responsibility. The court held that the plaintiff established a prima facie case because she created a genuine issue of material fact that at least two of the vice presidents performed many duties similar to those she performed. Additionally, the court noted that they shared the title of vice president and started with the same initial base salary.

Because Wildi established a prima facie case, the burden shifted to the defendant to raise its affirmative defenses. The defendant first argued that all employees were paid the market value of their skills. The defendant argued that the two other vice presidents received higher compensation because of the small number of individuals who had the necessary skills and qualified for the positions they held. However, the plaintiff successfully argued that her job responsibilities were nearly identical to the other vice presidents and that her skill set was just as valuable. The court noted that she supported her contention with evidence that the defendant paid an identical base salary to the vice presidents for several years after the positions were first established. Accordingly, the court rejected this defense. Nor was the court convinced by the defendant’s argument that bonuses were based on merit as there was evidence that bonuses were awarded as a percentage of base salary. As such, Wildi’s claim was permitted to proceed.

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Atkins v. Nicholson, No. 07 C 5963, 2009 WL 632184 (N.D. Ill. Mar. 9, 2009)

In Atkins v. Nicholson, the plaintiff, a federal employee working as a housekeeping aid at the Hines VA Medical Center, sued the Secretary of Veteran Affairs under Title VII and the Equal Pay Act alleging that he was treated differently than a female employee in the same unit who performed the same tasks he performed. The court granted summary judgment to the defendant on the EPA claim because it met its burden of showing that the pay disparity between Atkins and the female co-worker at issue was justified by the fact that she submitted a proper application and was selected through a merit promotion system for a higher pay grade, and while Atkins did not properly apply for the promotion to a higher salary grade.

C. System Pegging Earnings to Quantity of Production


In Glodek v. Jersey Shore State Bank, the court denied the employer’s motion for summary judgment on a female employee’s claim that alleged intentional discrimination based on gender because a male employee who performed substantially equal work was paid more. The employer responded arguing that the male comparator had different skills, effort, responsibility, and working conditions, the court moved on to the defendant’s affirmative defenses.

The district court was unmoved by the defendant’s affirmative defense that the disparity in pay for equal work was due to a factor other than sex. The district court rejected the bank’s claim that the female employee simply demanded a lower salary when she was initially hired. While it acknowledged salary demands may be relevant, it found that a demand for a higher salary is an inequitable shelter. The court was also unimpressed by the arguments that the company had higher expectations for the male employee than the female employee, and the plaintiff presented evidence suggesting that she was more experienced and better trained than her male comparator. The court then acknowledged that while a higher wage can be justified by the employee's production because without showing greater profits, merely showing greater revenue by the employer was insufficient. Regardless, the district court determined that these subjective supposed motivations as a factor other than sex for the pay disparity for equal work would require credibility determinations and, therefore, found that a summary judgment was inappropriate.

D. Factors Other Than Sex

Converse v. City of Oklahoma City, 649 F.Supp. 2d 1310 (W.D. Okla. Jul. 23, 2009)

In Converse v. City of Oklahoma City, the district court granted the city’s motion for summary judgment on Converse’s EPA claim holding. The court rejected the plaintiff’s claims against the school district in part because the male employee’s prior salary history, which was higher than the plaintiff’s, could be taken into consideration because it was not the employer’s sole justification for unequal compensation.

Mahan v. Peake, No. 07-15223, 2009 WL 174130 (E.D. Mich. Jan. 23, 2009)

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In Mahan v. Peake, the U.S. District Court for the Eastern District of Michigan granted the defendant’s motion for summary judgment. Mahan, who is male, was employed by the Veterans Administration (“VA”) in Detroit for a number of years, holding the position of addiction therapist during the timeframe relevant to his claims. Mahan claimed that after being assigned to a new supervisor, who was also male, he was subjected to a hostile work environment on account of sex based on eight alleged incidents of harassment by his new supervisor. The plaintiff further claimed that in 2002 when his classification level was a GS7 Step 8, a female addiction therapist was hired at a GS7 Step 10 level, resulting in the female comparator receiving a higher salary than his. Mahan brought suit alleging retaliation as well as violation of Title VII and the EPA. The retaliation claims were dismissed pursuant to stipulation, and the court granted summary judgment to the defendant on the other claims.

In connection with the EPA claim, the defendant asserted that Mahan had failed to make out a prima facie case because there were female addiction therapists at lower levels than the plaintiff who earned a lower salary. It further claimed that the pay disparity was based on factors other than sex since the female comparator had transferred from a different VA facility and her level and pay were determined solely based on the VA rules governing such transfers. The court found that Mahan had failed to provide any evidence that this justification was pretextual, and granted summary judgment in favor of the defendant, ruling that it had established its affirmative defense that the pay disparity was based on a factor other than sex.

Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL55949 (M.D. Pa. Jan. 7, 2009)


Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-cv-1229, 2009 WL 2242364 (M.D. Pa. Jul. 23, 2009)

In Lord v. Pennsylvania National Mutual Casualty Insurance, the U.S. District Court for the Middle District of Pennsylvania issued three separate orders regarding the viability of the plaintiff’s EPA claim and the evidence proffered in support. In WL 55949, the court rejected the report of a Magistrate Judge recommending summary judgment in favor of The defendant on the plaintiff’s EPA claim, finding disputed issues. In WL 2194521, the court denied the defendant’s motion for reconsideration of its earlier ruling denying the defendant’s motion for summary judgment of the EPA claim, finding that the challenged order failed to contain any “manifest errors of law or fact.” Finally, in WL 2242364, the court denied the defendant’s motion in limine seeking to exclude evidence of harassment and comments regarding manipulation of its pay system by the plaintiff’s former supervisor, finding the evidence highly probative and admissible subject to a limiting instruction.

Lord was employed by the defendant as a manager of worker’s compensation. She brought suit under the EPA, alleging that she was compensated at a lower salary than a male co-worker who held an equivalent position. The defendant asserted that the positions were not equivalent, and that the pay disparity was based on a factor other than sex in that it used the Hays Point System in determining pay, which “objectively” calculated salary in reliance upon several variables, including job descriptions. In response, Lord argued that the Hays Point System was capable of

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manipulation and that it had been manipulated in her case by a former supervisor in order to punish her for harassment complaints.

In connection with the defendant’s summary judgment motion, the court first reviewed the burden shifting framework under the EPA and the heavy burden on a defendant to prevail on summary judgment. In reviewing the evidence, the court found that Lord had met her prima facie burden of showing that employees of opposite sexes were paid differently for equivalent work. The plaintiff showed that she was paid $25,000 less than her male comparator, and submitted memoranda from a former supervisor indicating that the two of them held substantively identical positions. The defendant argued that the positions were not equivalent because the male comparator had litigation management and cost-related duties that were not a part of the plaintiff’s job, but the court pointed out that the plaintiff’s evidence showed that she had what appeared to be similar responsibilities over managed care. The court found that the defendant’s evidence did not unequivocally show the two positions required unequal skill, effort and responsibility since it failed to describe the daily responsibilities of the two positions or the amount of time spent on the various duties. The defendant also relied on its Hay Points System to assert that its pay determinations were based on factors other than sex. However, Lord proffered evidence that a former supervisor had retaliated against her for harassment complaints by manipulating her job description and Hay Points, and the court concluded that reasonable jurors could differ on the objectivity of the Hay Points System and whether Lord’s pay was based on factors other than sex, and denied the summary judgment motion.

In the defendant’s motion for reconsideration, it argued that the court failed to account for the context of the memoranda prepared by the comparators’ former supervisor indicating that their positions were equivalent, that the court improperly placed the burden of proof on the defendant to show job dissimilarity, and that the court failed to account for the defendant’s evidence that the pay differential resulted from a factor other than sex. The court rejected all of the defendant’s arguments. Regarding the supervisor’s memoranda, the court found that “contextual interpretation” of the type requested by the defendant was a matter for the jury, not the court. In connection with the burden of proof, the court found that Lord had met her burden of showing similarity of positions as part of her prima facie case by proffering evidence that she and her male comparator had similar responsibilities, authority, and duties, including the memoranda from her supervisor and deposition testimony that the positions were operationally identical. The court determined that the defendant’s proffered evidence that the male comparator had an additional responsibility that was not a part of Lord’s position was not enough to defeat the plaintiff’s prima facie case, since it was not supported by the supervisor’s testimony and documents, and since the defendant failed to show how much time was spent on the additional job function as compared to the job functions the male comparator had in common with the plaintiff. Regarding factors other than sex, although the defendant proffered evidence that it used the Hay Point System to determine salary, the court found that Lord’s proffered evidence that she had been subjected to a pattern of harassment by a previous supervisor, which resulted in modifications of her Hay Points and job description could lead reasonable jurors could differ on each of these issues, and held that denial of summary judgment of the EPA claim was therefore proper.

Mayden v. Superior Ambulance Service, 647 F. Supp. 2d 1014 (N.D. Ind. July 10, 2009)

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In Mayden v. Superior Ambulance Service, the U.S. District Court for the Northern District of Indiana denied the defendant’s motion for summary judgment with respect to the plaintiff’s Equal Pay Act claims. Mayden, a licensed EMT, worked for the defendant as a wheelchair van dispatcher, as well as performing additional duties as community relations liaison and as a fill-in EMT. Mayden resigned from her job claiming that she was being paid less than the male ambulance dispatcher, and was replaced by a male who was paid at a higher rate than Mayden had earned in the wheelchair van dispatcher position. Plaintiff filed suit alleging sex discrimination under Title VII and violation of the EPA. The defendant filed a motion summary judgment, contending that Mayden could not establish her claims and that its pay scale was based on non-prohibited criteria.

In considering Mayden’s EPA claims, the court analyzed her two male comparators separately. The first allowed comparator, an ambulance dispatcher, was not a valid comparator because he had different and additional responsibilities, as well as different working conditions. As such, he could not serve as a comparator. However, the court found that there was evidence that the second alleged comparator, the wheelchair van dispatcher who replaced the plaintiff, performed equal work. The court further found that while the defendant proffered a non-sex-based factor for the pay disparity, namely the differences in education and experience, it had not met the heavy burden required to prevail on an affirmative defense at the summary judgment stage. The court therefore denied the motion as the plaintiff’s EPA claim regarding her male replacement.


In Wildi v. Alle-Kiski Medical Center, a former vice president of operations filed a lawsuit alleging that the Medical Center violated the EPA by paying her a base salary and bonus that were less than the three male vice presidents, who she claimed performed equal work on jobs which required equal skill, effort and responsibility. Finding that Wildi established a prima facie case, the court turned to the Medical Center’s affirmative defenses. The defendant first argued that all employees were paid the market value of their skills. The defendant argued that the two other vice presidents received higher compensation because of the small number of individuals who had the necessary skills and qualified for the positions they held. However, the plaintiff successfully argued that her job responsibilities were nearly identical to the other vice presidents and that her skill set was just as valuable. The court noted that she supported her contention with evidence that the defendant paid an identical base salary to the vice presidents for several years after the positions were first established. Accordingly, the court rejected this defense. Nor was the court convinced by the defendant’s argument that bonuses were based on merit as there was evidence that bonuses were awarded as a percentage of base salary. As such, Wildi’s claim was permitted to proceed.

LaBeach v. Wal-Mart, No. 5:07-cv-12, 2009 WL 902030 (M.D. Ga. Mar. 27, 2009)

In LaBeach v. Wal-Mart, the U.S. District Court for the Middle District of Georgia granted the defendant’s motion for summary judgment, finding that the plaintiff failed to make a prima facie showing of wage discrimination. The plaintiff’s evidence did not show that she and her male comparator, a male co-worker who was paid $6,000 more, had performed equal work or substantially similar jobs, and the court found that the plaintiff’s reliance solely on title similarity and lack of evidence as to actual job content was insufficient to establish a prima facie case. The

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court also determined that the defendant’s affirmative defense that the plaintiff’s male comparator had four years more experience with the company than the plaintiff was a compelling enough rationale based on a factor other than sex for the defendant to overcome the plaintiff’s prima facie case, had she been able to establish one. The plaintiff did not proffer evidence to rebut this affirmative defense or allege a pretext for the wage disparity. Accordingly, the court determined there were sufficient grounds to grant Wal-Mart’s motion for summary judgment.

Johnson v. Bibb City Bd. of Ed., 2009 WL 1885052 (M.D. Ga. June 29, 2009)

In Johnson v. Bibb City Board of Education, a female former director of a special education program at one of the defendant’s schools in Georgia sued the Board of Education for, among other claims, wage discrimination under the EPA after her contract for employment as director of the special education program was not renewed and she was replaced by a male who was paid a higher salary in the director position she formerly occupied.

In assessing the defendant’s summary judgment motion with respect to the EPA claim, the court found that while the plaintiff established her prima facie claim by proving that her male comparator, the person who replaced her as program director, was paid a higher salary than she when he started, there was a suitable affirmative defense to this claim. The defendant argued that it paid more for her replacement based solely on factors other than sex, including his prior experience, training and abilities. The plaintiff failed to offer any affirmative evidence of pretext for the decisions made by her former employer in paying her male comparator more. Accordingly, the court granted the defendant summary judgment as to the plaintiff’s EPA claim finding that factors other than sex were used to determine the salary of the plaintiff’s male comparator.

Harris, et al. v. Auxilium Pharm., Inc., No. CIVA 4:07-cv-3938, 2009 WL 315 275 (S.D. Tex. Sept. 28, 2009)

In Harris v. Auxilium Pharmaceuticals, the U.S. District Court for the Southern District of Texas found that the plaintiffs established sufficient issues of material fact to survive the defendant’s summary judgment motion on their EPA claim.

The plaintiffs, a group of female medical sales consultants (MSCs), contended that Auxilium paid male MSCs more than female MSCs in violation of the EPA. While the plaintiffs proffered evidence that several male comparators were paid higher gross compensation, the defendant asserted that only some and not all male MSCs made more than the plaintiffs did. The defendant further argued that the plaintiffs’ comparison to some male MSCs was random and therefore not sufficient evidence of prima facie wage discrimination. The court was not persuaded by the defendant’s arguments, finding it compelling that the defendant did not attempt to argue that these male MSCs who did make more had differing responsibilities or some other non-discriminatory rationale for the alleged anomaly. The court found that the plaintiffs made their prima facie claim of wage discrimination under the EPA and the burden shifted to the defendant to demonstrate the disparate pay resulted from factors other than sex.

In attempting to meet its burden, the defendant offered evidence that there are several factors making up an MSC’s gross compensation, including base salary, incentive compensation, and contest award money. The defendant also argued that a MSCs base salary is based on factors

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such as prior experience, tenure, performance and the geographical location in which the MSC works. Further, the defendant claimed it would review MSCs compensation on an annual basis to determine if these factors were met. The defendant also argued that based on these factors, there were some female MSCs who were paid more than the plaintiffs and other males.

The court did not find the defendant’s claims tenable as the evidence showed that the review of compensation didn’t begin in the first two years the plaintiffs’ claim wage disparity existed, and there were no specific written criteria in place for either equity increases or merit increases. The court found that the plaintiffs also created a fact issue with respect to pay disparity relating to a quota system, which the defendant argued did not result in a pay difference. Accordingly, the court found that the plaintiffs had raised sufficient issues of material fact to withstand the defendant’s motion for summary judgment and, therefore, the court denied that part of the defendant’s motion for summary judgment relating to the plaintiffs’ EPA claim.


In Glodek v. Jersey Shore State Bank, the court denied the employer’s motion for summary judgment on a female employee’s claim that alleged intentional discrimination based on gender because a male employee who performed substantially equal work was paid more. The employer responded arguing that the male comparator had different skills, effort, responsibility, and working conditions, the court moved on to the defendant’s affirmative defenses.

The district court was unmoved by the defendant’s affirmative defense that the disparity in pay for equal work was due to a factor other than sex. The district court rejected the bank’s claim that the female employee simply demanded a lower salary when she was initially hired. While it acknowledged salary demands may be relevant, it found that a demand for a higher salary is an inequitable shelter. The court was also unimpressed by the arguments that the company had higher expectations for the male employee than the female employee, and the plaintiff presented evidence suggesting that she was more experienced and better trained than her male comparator. The court then acknowledged that while a higher wage can be justified by the employee's production because without showing greater profits, merely showing greater revenue by the employer was insufficient. Regardless, the district court determined that these subjective supposed motivations as a factor other than sex for the pay disparity for equal work would require credibility determinations and, therefore, found that a summary judgment was inappropriate.

Drum v. Leeson Elec. Corp., 565 F.3d 1071 (8th Cir. May 15, 2009)

In Drum v. Leeson Electric Corporation, a female human resources manager (HRM) based her claim on the fact that she was replaced by a male successor who was hired from outside to a $62,500 salary ($16,900 greater than the plaintiff’s $45,600 salary) to perform equal work. Drum had been promoted from a lower-level position in 1999 after nine years with the company. The district court granted the employer's motion for summary judgment under the EPA on grounds that the employer showed the male successor was hired because he was the most qualified candidate and required the higher salary.

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The Eighth Circuit reversed, rejecting the district court's interpretation of the factors, finding the plaintiff established a prima facie case, and that the employer failed to identify a factor other than sex on which its pay determination was based. The appellate court rejected the employer's arguments that because it negotiated with the male successor, it has proved the factor-other-than-sex defense. The Eighth Circuit distinguished Horner v. Mary Institute, 613 F.2d 706 (8th Cir. 1980), because in that case it was the male employee's salary that was the outlier, whereas in this case (Drum) it was the plaintiff female employee’s salary that was the outlier. Here, the court found it was the successor’s pay that was in line for the work performed, yet the plaintiff's pay was not. The court pointed to the fact that Drum’s pay was well below that of her male HRM counterparts, and since her salary is the outlier, the employer must justify the salary. The Eighth Circuit further rejected arguments that her prior salary justified her HRM salary: "When prior salary is asserted as a defense to a claim of unequal pay, this court carefully examines the record to ensure that an employer does not rely on the prohibited 'market force theory' to justify lower wages for female employees simply because the market might bear such wages. In conducting this examination, this court's concern is related solely to the issue of whether the prior salary is based on a factor other than sex." The final argument rejected by the court was the employer's claims of a major change in salary structures from where all salaries were slightly under industry averages, to a new "broad band salary structure." The court found that by providing only the name, gender, and salary for the employees, and not their education, experience, or other qualifications, the employer had failed to establish the difference in salaries due to a change in policy. As such, the record failed to establish that the pay differential was due to a factor other than sex, and the lower court’s grant of summary judgment was reversed.

Gresham v. Florence, 319 Fed. Appx. 857 (11th Cir. Mar. 19, 2009)

In Gresham v. Florence, the female plaintiff had been employed by the city as a director of parks and recreation, but was demoted to Maintenance Supervisor by a new mayor. The Eleventh Circuit affirmed the Northern District of Alabama's grant of summary judgment for the city, finding that the plaintiff failed to present a prima facie case. Specifically, the employee failed to show that other higher-paid male department heads were valid comparators. The plaintiff complained that she was discriminated against because she ran one of the larger departments but had a lower pay grade than male department heads whose departments were of similar size. The Eleventh Circuit found that the city’s pay scale was determined based on factors other than sex. She was paid based on that scale while employed by the city. Thus, the Eleventh Circuit affirmed the summary judgment for the employer.

EEOC v. Home Depot U.S.A., No. 4:07-cv-0143, 2009 WL 395835 (N.D. Ohio Feb. 17, 2009)

In this case, Home Depot prevailed on summary judgment against the EEOC and the intervening female employee accusing the retailer of pay discrimination. The Northern District of Ohio detailed the employee's previous work history at lower wage positions at unskilled work, quitting with graphic vulgar language toward her supervisors, electrician apprenticeship, and her two years off work while collecting questionable workers' compensation benefits. Then the court detailed her entry-level part-time position as a Sales Associate at Home Depot, her complaints at multiple levels over her compensation, her gradual pay increases during her first year, her interview and promotion from full-time sales associate at the Pro Sales Account desk, Home Depot’s detailed internal review of this employee's pay rate based on the company’s policies, and

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her eventual noisy resignation. The district court also found that Home Depot replaced this employee with another woman at a higher rate of pay, which pay was also greater than 3 of the 5 other male Pro Sales Associates.

Home Depot did not dispute that the plaintiffs established their prima facie case, but moved for summary judgment on the defense that the pay differences were due to factors other than sex. The court agreed, conducting a detailed review of the seven male comparators listed by the plaintiff. The court found that there were factors other than sex to account for the wage differentials, “i.e., superior qualifications, better experience, and/or prior salary” and that there was no evidence of pretext. As such, the court granted Home Depot’s motion.

Ebbert v. Nassau Co., No. 05-cv-5445, 2009 WL 935812 (E.D.N.Y. Mar. 31, 2009)

In Ebbert v. Nassau Company, Police Communications Officers and Supervisors (PCOs and PCOSs) sued the county claiming they, in a predominantly female position, receive unequal pay for substantially equal work performed by the Fire Communications Technicians and Supervisors (FCTs and FCTSs), who are all male. The pay grades for these positions were at one time different, but had been adjusted through a conversion process to be equal. However, there were some lingering disparities due to the changes over the conversion period. The question for the Eastern District of Pennsylvania on the county’s motion for summary judgment was whether the fire employees performed substantially the same work as the police employees. The court noted press releases from the County Executive said that the reasoning for the conversion process changing the pay scales was to give equal pay for equal work of the police and fire personnel as evidence the county knew the two departments were doing substantially the same work. The court commended the county's voluntary action, but said "the effects of the [past] disparities still remain." Ultimately, on the county's affirmative defense that the reason for the pay disparities was due to a factor other than sex, the court found the county did not meet its high burden and denied its motion for summary judgment.



The court upheld dismissal of the plaintiff’s EPA claim because she “presented no evidence that she was paid less than co-workers outside of her protected class for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Critical to the court’s decision was the fact that the plaintiff was the only employee in her job position in Cleveland. The court rejected her attempts to show evidence of varying wages from employees outside of Cleveland, based on the definition of “establishment” in the statute. Because there were no comparable employees in Cleveland, the plaintiff could not show that non-protected employees held substantially equal jobs and were paid more. Nor could she point to any of the employees who were paid at a higher rate because they had greater seniority and earned a higher rate pursuant to a provision in their collective bargaining agreement. As such, summary judgment was appropriate.

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Taylor v. St. Louis County Board of Election Commissioners, No. 4:07-cv-1544, 2009 WL 1176298 (E.D.Mo. Apr. 30, 2009)

In Taylor v. St. Louis County Board of Election Commissioners, the plaintiff who had a 20 year tenure with the Board, became the Democratic Director in 1998. The plaintiff acted as the Lead Director when the Governor was a Democrat and was not a Lead Director when the Governor was a Republican. From 2001 through 2003, the plaintiff and the Republican Director (male) received the same salary. In 2005, the Board recruited a Republican Judge for the Lead Director position. This comparator was planning to retire from the bench in 2006 but would not change his retirement plans to accept the Lead Director position for a salary less than a Circuit Court Judge ($6,000 more than the plaintiff’s salary). The Board agreed and the comparator became the Lead Director. The plaintiff remained as the Democratic Director until the Board voted unanimously to end her employment in early 2007. The plaintiff brought suit claiming she was discharged in violation of the public policy exception to Missouri’s employment at-will doctrine (Count I) and that she was paid lower wages than her male counterparts in violation of the EPA (Count II).

On the EPA claims against the Board, the court concluded that the Board failed to establish an affirmative defense where: (1) the record did not clearly delineate a difference in the position of the Lead Director (comparator) versus Director (Plaintiff), and Plaintiff did not receive a higher salary when she was the Lead Director; (2) while the comparator had significantly more education than the plaintiff, she had more experience with the Board than the comparator, and the Board failed to establish the extent to which any difference between the plaintiff and the comparator in terms of education and experience benefit the Director position so as to support the salary differential; and (3) the male comparator’s demand for a higher salary did not establish a clear need for the difference in salary. As such, the Board’s motion for summary judgment was denied.


In Tasbas v. Nicholson, the plaintiff filed suit alleging employment discrimination under Title VII and the EPA. In her EPA claim she alleged that she was paid less than a male doctor with more seniority, who performed the same work. The defendants moved for summary judgment on the basis of lack of subject matter jurisdiction, as well as the substance of her claims. In granting summary judgment, the court held that it lacked subject matter jurisdiction and further held that the plaintiff’s claim lacked merit in any event because the discrepancy between the plaintiff’s salary and that of the single comparator was based upon years of service. The comparator’s 15 years of additional service, and the fact that the plaintiff’s salary eventually matched that of the comparator when the plaintiff reached his grade level based upon years of service, justified the pay differential.

Moorehead v. US, 88 Fed. Cl. 614 (Fed. Cl. Sept. 3, 2009)

In Moorehead v. US, the Court of Federal Claims held a bench trial on the claim of a Transportation Security Administration (“TSA”) female employee that was hired at a lower starting salary than males who were hired in the same position. After finding that she had established a prima facie case under the EPA, the court turned to the TSA’s stated affirmative defense that the pay disparity was based on, and explained by, the application of a salary

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guidance. The court found that the salary guidance was on its face gender neutral and was applied in a gender neutral manner. As such, the court found that the pay disparity was based on a factor other than sex and ruled in favor of the TSA.

Neview v. D.O.C. Optics Corp., No. 07-12302, 2009 WL 242672 (E.D. Mich. Mar. 19, 2009)

In Neview v. D.O.C. Optics Corp., a former retail manager and her husband brought claims under the Michigan Elliot-Larsen Civil Rights Acts and the Equal Pay Act, as well as various state law claims. Neview pointed to the undisputed fact that two male counterparts received higher annual base salary, but the defendant produced evidence that each had more relevant experience than the plaintiff as a manager. Also, the highest paid manager was female. The court held that the defendant was entitled to summary judgment because the plaintiff had not presented evidence rebutting the defendant’s assertion that managerial salary was determined by experience and relevant qualifications.

Allen v. Garden City Co-Op, Inc., 651 F.Supp. 2d 1249 (D. Kan. Aug. 27, 2009)

In Allen v. Garden City Co-Op, Inc., a certified public accountant (“CPA”), brought claims against her former employer alleging discrimination in pay in violation of the Equal Pay Act, Title VII, and the Kansas Act Against Discrimination, and the Co-Op moved for summary judgment.

The court noted that the Co-Op did not address whether Allen could establish a prima facie case under the EPA; Defendants instead argued that they had legitimate, nondiscriminatory reasons for any pay disparity. The court determined that the three comparators were relevant to the discussion: (1) Allen’s immediate predecessor, (2) Allen’s successor, and (3) a vice president who was hired at or around the same time period that Allen was hired as CFO. The Co-Op argued that the same salary was offered to the plaintiff as was offered to the vice president because they both lacked managerial experience in their new positions. The Co-Op further argued that the disparity between the plaintiff’s pay and that of her predecessor’s and successors was based on the plaintiff’s inexperience.

Allen responded that a factual question existed as to whether she and the vice president were at the same position in their careers, as she had been working full-time for nine years longer than he, and had previously supervised individuals while he had not. Allen further argued that there was a factual question as to whether her successor and predecessor were paid more than she as a result of her inexperience because the Co-Op never asked her about her supervisory experience, the Co-Op never asked her successor about his supervisory experience before setting his pay rate, and Allen had a degree in accounting and over seventeen years of experience in public accounting while her successor did not have a college degree. Additionally, Allen argued that a question of fact existed as to whether the exclusion of a company car was the basis for her successor’s higher pay because there was no discussion between him and the Co-Op as to whether his pay would include a company car.

The court found that there were several factual questions as to the basis of the Co-Op’s decision in setting the plaintiff’s pay such that it could not conclude as a matter of law whether the Co-

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Op’s proffered reasons explained the pay difference. Accordingly, the court denied summary judgment as to Plaintiff’s Equal Pay Act claim.

Atkins v. Nicholson, No. 07 C 5963, 2009 WL 632184 (N.D. Ill. Mar. 9, 2009)

In Atkins v. Nicholson, the plaintiff, a federal employee working as a housekeeping aid at the Hines VA Medical Center, sued the Secretary of Veteran Affairs under Title VII and the Equal Pay Act alleging that he was treated differently than a female employee in the same unit who performed the same tasks he performed. The court granted summary judgment to the defendant on the EPA claim because it met its burden of showing that the pay disparity between Atkins and the female co-worker at issue was justified by the fact that she submitted a proper application and was selected through a merit promotion system for a higher pay grade, and while Atkins did not properly apply for the promotion to a higher salary grade.

Bowers v. Medical Park Center Pharmacy, No. 07-cv-471, 2009 WL 2916893 (N.D. Okla. Sept. 4, 2009)

In Bowers v. Medical Park Center Pharmacy, Bowers, the former director of operations for a pharmacy, brought suit against her former employer alleging wrongful termination, retaliation, disparate impact, and Equal Pay Act claims. The plaintiff’s annual salary was $72,000, but a male employee who was trained on her job responsibilities and then assumed her job duties when she was demoted was paid $100,000.

The defendants moved for summary judgment arguing that Bowers was unable to establish that she performed work substantially equal to the male employee she claimed as a comparator. The court disagreed, finding that (1) although the male comparator’s educational background was more extensive than the plaintiff’s, a direct relationship was not established between it and the work he performed; (2) there was conflicting testimony as to the comparator’s position and job functions; and (3) the plaintiff proffered evidence to show that the comparator’s job duties overlapped with hers sufficient to create an issue of fact. While the defendants also attempted to justify the salary disparity by arguing that the male employee performed job functions related to special projects and expansion, they failed to demonstrate sufficient evidence in this regard. As such, the court denied the defendants’ motion for summary judgment and allowed Bowers’ EPA claim to proceed.


In Jamilik v. Yale University, the Second Circuit overturned the trial court’s grant of summary judgment to Yale. Jamilik, who is female, alleged that a male colleague had been paid more than she since August 1989, in violation of the EPA and Title VII. Yale did not dispute that the colleague was paid more but argued that this colleague’s responsibilities were different, defeating Jamilik’s prima facie case and constituting a “factor other than sex” on which the pay disparity was based.

The court found that while Yale pointed to evidence that the two positions were dissimilar, it did not present any evidence as to the comparability of the positions in 1989, when Jamilik and her comparator held the same grade, rank and title, and when the pay differential began. The failure to present evidence regarding the equivalence of the two positions at the time that the pay

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differential appeared was, according to the court, sufficient to raise an issue of fact on both Jamilik’s prima facie case and Yale’s affirmative defense. As such the court of appeals reversed the lower court’s grant of summary judgment and remanded.

Clemente v. Oregon Dept. of Corrections, 315 Fed. Appx. 657 (9th Cir. March 2, 2009)

In Clemente v. Oregon Dept. of Corrections, the Ninth Circuit Court of Appeals considered and upheld the lower court’s grant of summary judgments in favor of the Department of Corrections. In response to Clemente’s prima facie case, the Department offered undisputed evidence that the only make hired at a higher starting salary than Clemente had experience as a correctional hearings officer and was earning more in his current position than he would have had he been hired as a “Step 1” salary level – which was the level at which Clemente was hired. The court found that in light of this evidence, Clemente’s claims could only survive summary judgment if she offered sufficient evidence to create a triable issue of fact as to whether the Department’s proffered nondiscriminatory reasons for the pay disparity were pretextual.

The court rejected each of Clemente’s attempts to establish pretext. First, while Clemente argued that her comparator’s experience was not superior to her own, the court found that it was undisputed that the Department preferred applicants with the specific type of experience the comparator had. Clemente also argued that variations in the Department’s proffered explanations of the salary differential demonstrate pretext, but the court found the variations to be minor and that the explanations were never inconsistent. Finally, while Clemente offered some evidence that her supervisor discriminated against her on the basis of gender, the court found that she failed to present any evidence linking any discriminatory animus to her salary offer. The court also noted that the Department hired another male during the same period with similar experience as Clemente at the same salary grade as Clemente. As such, the court upheld the lower court’s grant of summary judgment.

VI. PRETEXT

While not technically a part of the EPA analysis, many courts rely upon evidence pretext (or the lack thereof) in analyzing EPA claims.

Prewitt v. Mississippi State Univ., No. 1:06-cv-338, 2009 WL 804742 (N.D. Miss Mar. 25, 2009)

In Prewitt v. Mississippi State Univ., a female research assistant and Assistant Research Professor brought suit under the EPA. The University filed a motion for partial summary judgment seeking a ruling that Prewitt and her male comparator did not perform work requiring equal skill, effort and responsibility and that any difference was justified by factors other than sex. The University argued that though Prewitt and her comparator worked as research staff members in the same department and in some years held the same job title, the comparator’s research was more closely related to industry and had requirements imposed by the Environmental Protection Agency. It also argued that the comparator signed off on quality assurance and quality control reports for both his own and others’ work, and was in charge of selecting equipment and writing specifications for the equipment used, while Prewitt had none of these additional responsibilities. Prewitt disputed that she and her comparator performed different work and the court found that, taking the evidence in the light most favorable to the

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plaintiff, the work done by the two employees may have been substantially similar. As such, Prewitt established her prima facie case for purposes of summary judgment.

The court rejected the University’s asserted affirmative defense that any difference in pay was justified by factors other than sex. The court found that, in light of direct evidence of discrimination—a letter in which the University admitted that minority employees were paid less than their counterparts—a reasonable jury might disbelieve the University’s stated, non-discriminatory reasons. As such, the court denied the University’s motion for partial summary judgment and allowed Prewitt’s case to proceed.


In Allen v. Garden City Co-Op, Inc., a certified public accountant brought claims against her former employer alleging discrimination in pay in violation of the Equal Pay Act, Title VII, and the Kansas Act Against Discrimination, and the Co-Op moved for summary judgment. In its opinion, the court explained the significant difference between the burden of proof under the EPA and Title VII. While Title VII puts the burden on the plaintiff to prove that the employer intentionally paid her less than a similarly situated male employee, the EPA imposes a form of strict liability on employers who pay males more than females and the plaintiff does not need to establish that the employer acted with discriminatory intent. In a footnote, the court reiterates that a pretext analysis in inapplicable in an EPA discrimination context.

Johnson v. Bibb City Bd. of Ed., No. 5:07-CV-425, 2009 WL 1885052 (M.D. Ga. June 29, 2009)

In Johnson v. Bibb City Board of Education, a female former director of a special education program at one of the defendant’s schools in Georgia sued the Board of Education for, among other claims, wage discrimination under the EPA after her contract for employment as director of the special education program was not renewed and she was replaced by a male who was paid a higher salary in the director position she formerly occupied.

In assessing the defendant’s summary judgment motion with respect to the EPA claim, the court found that while the plaintiff established her prima facie claim by proving that her male comparator, the person who replaced her as program director, was paid a higher salary than she when he started, there was a suitable affirmative defense to this claim. The defendant argued that it paid more for her replacement based solely on factors other than sex, including his prior experience, training and abilities. The plaintiff failed to offer any affirmative evidence of pretext for the decisions made by her former employer in paying her male comparator more. Accordingly, the court granted the defendant summary judgment as to the plaintiff’s EPA claim finding that factors other than sex were used to determine the salary of the plaintiff’s male comparator.

Clemente v. Oregon Dept. of Corrections, 315 Fed. Appx. 657 (9th Cir. March 2, 2009)

In Clemente v. Oregon Dept. of Corrections, the Ninth Circuit Court of Appeals considered and upheld the lower court’s grant of summary judgments in favor of the Department of Corrections. In response to Clemente’s prima facie case, the Department offered undisputed evidence that the only make hired at a higher starting salary than Clemente had experience as a correctional

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hearings officer and was earning more in his current position than he would have had he been hired as a “Step 1” salary level – which was the level at which Clemente was hired. The court found that in light of this evidence, Clemente’s claims could only survive summary judgment if she offered sufficient evidence to create a triable issue of fact as to whether the Department’s proffered nondiscriminatory reasons for the pay disparity were pretextual.

The court rejected each of Clemente’s attempts to establish pretext. First, while Clemente argued that her comparator’s experience was not superior to her own, the court found that it was undisputed that the Department preferred applicants with the specific type of experience the comparator had. Clemente also argued that variations in the Department’s proffered explanations of the salary differential demonstrate pretext, but the court found the variations to be minor and that the explanations were never inconsistent. Finally, while Clemente offered some evidence that her supervisor discriminated against her on the basis of gender, the court found that she failed to present any evidence linking any discriminatory animus to her salary offer. The court also noted that the Department hired another male during the same period with similar experience as Clemente at the same salary grade as Clemente. As such, the court upheld the lower court’s grant of summary judgment.

VII. STATUTE OF LIMITATIONS

Wood v. Kaplan Properties, Inc., No. 09-1941, 2009 WL 3230267 (D.N.J. Sept. 29, 2009)

In Wood v. Kaplan Properties, Inc., a former real estate agent filed suit alleging, among other claims, disparate pay in violation of the EPA. The plaintiff claimed that the defendant paid its sales team in a way that favored younger male employees and paid males higher base salaries and higher commissions per single family home sold. Specifically, in 2004, the plaintiff’s commission was $1,200 per home, whereas a newly hired male, in 2005, received a $2,000 commission per home. The plaintiff’s employment was terminated on September 11, 2006, and she filed suit on February 23, 2009 – more than two years later. The court noted that the EPA requires that actions be commenced within two years, except for causes of action arising out of a willful violation, which may be commenced within three years. The court held that the plaintiff had not made sufficient allegations to demonstrate that the defendant knew or recklessly disregarded its legal obligation to comply with the EPA. In so holding, the court noted that the plaintiff had not alleged that she complained to the defendant that she was being paid less than her male co-workers and that it disregarded her complaints, or that she expressed concern that the pay differentials may not be legal. As such, the plaintiff failed to demonstrate a willful violation of the EPA, and the two year statute of limitations was applied, barring her claims.

Jappa v. California, 2009 WL 69312 (S.D. Cal. Jan. 8, 2009)

In Jappa v. California, the U.S. District Court for the Southern District of California denied the defendants’ motion to dismiss Jappa’s claims under violation of the State and Federal Equal Pay Acts. The court rejected the defendants’ contention that the three year statute of limitations, applicable in both instances for a willful violation, did not apply because the plaintiff had not alleged any facts supporting willfulness. Contrary to the defendants’ assertion, the court found that the plaintiff had alleged willful conduct alleging that she was asked by the defendant to perform ‘out-of-class’ work for which she was not compensated (despite the defendant agreeing,

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pursuant to a collective bargaining agreement, to pay for “out-of class” work) and by alleging that she was not paid the same as her male counterparts. Accordingly, the court, in viewing the allegations in a light most favorable to the plaintiff, denied the defendants’ motion to dismiss these EPA counts.

Ikossi-Anastasiou v. Bd. of Sup. of La. State Univ., 579 F.3d 546 (5th Cir. Aug. 18, 2009)

In Ikossi v. Louisiana State University Board of Supervisors, the Fifth Circuit Court of Appeals affirmed in part the lower court’s granting of summary judgment in favor of the University and against the plaintiff, a professor. In April, 1998, Ikossi, a female professor on sabbatical for the 1997-1998 academic year, requested an additional unpaid leave from the University for the entire next academic year to care for a family member. The University granted the request for unpaid leave but only until the end of the Fall 1998 semester, stating that it was short of faculty for the Spring 1999 semester. Ikossi acknowledged the leave she was granted, but again requested to be off for the Spring 1999 semester. This request was rejected in August 1998. Ikossi then sent another letter to the University requesting unpaid time off for the rest of the school year and was again denied in January 1999 in a letter from the University in which it stated that the request for unpaid leave was already denied and if she did not return to her teaching responsibilities at the University for the spring semester, then the University will assume that she had abandoned her job. Ikossi did not return for the Spring semester and subsequently filed an EEOC complaint in September 1999, with a right to sue letter issued a short time after that. Ikossi filed suit in November 2000. The lower court granted the University’s motion for summary judgment on all of Ikossi’s claims on the grounds that her claims were time barred.

On appeal of the lower court’s grant of summary judgment, Ikossi argued that her claims under the EPA were not time barred because the proper statute of limitations to be applied to her EPA claim is three years as the University acted willfully. Ikossi attempted to show proof of willfulness through salary records exemplifying wage discrepancies between her and male co-workers. She also proffered evidence in the form of her past complaints of wage discrepancies and her requests for an upward adjustment. However, the court found that Ikossi’s evidence did not amount to a showing of willfulness (in that she did not show that the University ignored her complaints) nor did she show that the University knew of or recklessly disregarded whether its pay structure violated the EPA. The court also accepted as a judicial admission the plaintiff’s assertion on the record that her EPA claim accrued as of August 1998. As a result of the plaintiff’s failure to show willfulness, the appeals court affirmed the lower court’s grant of summary judgment on the plaintiff’s EPA claim, as that claim was filed in November 2000, more than two years after Plaintiff asserted the claim accrued and, therefore, absent a proper showing of willfulness by the plaintiff, was time barred.

Prewitt v. Mississippi State Univ., No. 1:06-cv-338, 2009 WL 57087 (N.D. Miss Jan. 7, 2009)

In Prewitt v. Mississippi State Univ., a female research assistant and Assistant Research Professor filed suit against the University claiming that she was paid less than a colleague based on her gender. The University moved for partial summary judgment seeking to apply a two year statute of limitations to Prewitt’s claims. While the plaintiff had not specifically asserted a willful violation (so as to apply the three year statute of limitations), the court found that

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evidence presented by the plaintiff in response to the University’s motion for summary judgment, including letters from representatives at the University acknowledging pay inequities, were sufficient to allow her case to move forward based on the three year statute of limitations.


In Jamilik v. Yale University, the Second Circuit overturned the trial court’s grant of summary judgment to Yale because, it found outstanding issues of fact with regard to both the plaintiff’s prima facie case and Yale’s affirmative defense. However, the court of appeals upheld the lower court’s finding that the two-year statute of limitations applied to Jamilik’s claims. The court based this determination of the fact that Yale conducted a thorough investigation into Jamilik’s salary grievance and that the investigation was in good faith.

VIII. DAMAGES

Todaro v. Siegel Fenchel & Peddy, et. al., P.C., No. 04-cv-2939, 2009 WL 3150408 (E.D.N.Y. Sept. 25, 2009)

In Todaro v. Siegel Fenchel & Peddy, P.C., the plaintiff, a former law firm associate, was paid a salary of $102,500 in 2002. However, after becoming pregnant, she was notified on January 1, 2003 that her annual salary would be reduced by 25% to $76,875. On July 21, 2003, Todaro resigned. She filed suit against her former employer alleging gender and pregnancy discrimination in violation of Title VII and violations of the Equal Pay Act (“EPA”). At trial, the jury found against the plaintiff on her Title VII claims, but in her favor on the EPA claim, awarding her $16,500 in back pay damages. The defendants moved to set aside the verdict and for judgment as a matter of law on all claims.

The U.S. District Court for the Eastern District of New York noted that Todaro only had an EPA claim to the extent that she received wages “at a rate less” than “employees of the opposite sex.” In calculating the plaintiff’s back pay damages, the jury assumed that – but for discrimination – Plaintiff would have earned $118,697 in 2003. However, the plaintiff failed to identify either a specific male associate or a statistically composite male associate who earned a salary anywhere near that amount. Accordingly, the jury award of $16,500 in back pay damages was improper. Instead, the court calculated the plaintiff’s back pay damages based upon an annual salary of $97,379, the salary of the only comparable male associate. Accordingly, the court decreased the plaintiff’s compensatory damages by $8,410.75 to $8,089.25.

However, the court noted that absent a showing of “good faith” by defendants, courts in the Second Circuit have consistently awarded liquidated damages equal to the amount of compensatory damages. Accordingly, the court awarded an additional $8,089.25 in liquidated damages for a total award of $16,178.50.

King v. University Healthcare System, No. 08-1060, 2009 WL 2390880 (E.D. La. Aug. 3, 2009)

In King v. University Healthcare System, the U.S. District Court for the Eastern District of Lousiana awarded liquidated damages to the plaintiff, Dr. Angela King, in an amount equal to the amount of actual damages awarded by the jury. The court noted that the Equal Pay Act

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amended section 206 of the Fair Labor Standards Act (FLSA) to prevent pay discrimination based on sex and to provide that the FLSA’s statute of limitations and liquidated damages provisions apply to Equal Pay Act claims. The court further noted that the determination of liquidated damages rests with the judge pursuant to the FLSA, and the judge’s determination of whether the employer acted in ‘subjective and objective good faith’ for avoidance of liquidated damages. The burden of such good faith rests on the employer.

The court determined that the employer was unable to avail itself of the safe harbor provision of the FLSA rule on liquidated damages because it had failed to satisfy its substantial burden of proof that it acted subjectively and objectively in good faith. The court sided with the jury and found that the plaintiff was treated differently than a male comparator in the payment of a bonus. As the defendant employer was unable to show by any convincing evidence that there were non-discriminatory reasons for its actions in not giving the plaintiff a bonus that her male comparator received under similar circumstances, it failed to meet its substantial burden that it had acted in subjective and objective good faith with reasonable belief in its compliance with the FLSA. The court, accordingly, awarded Dr. King liquidated damages in an amount equal to her actual damages.

Garcia v. Oasis Legal Finance Operating Co., No. 08 C 4973, 2009 WL 212119 (N.D. Ill. Jan. 26, 2009)

Garcia v. Oasis Legal Finance Operating Co., 608 F. Supp. 2d 975 (N.D. Ill. April 9, 2009)

In Garcia v. Oasis, the plaintiff/employee accepted the defendant/employer’s offer of judgment on the plaintiff's EPA complaint, and then moved for attorneys fees as a prevailing party. The U.S. District Court for the Northern District of Illinois refused to strike the plaintiff's acceptance of the offer of judgment, finding an offer and acceptance that were both unambiguous. The plaintiff's acceptance could not be deemed a counteroffer simply because the plaintiff declared its intent to proceed on seeking attorneys’ fees as a prevailing plaintiff. The district court found that the Rule 68 offer was silent regarding costs and fees did not unambiguously indicate that it encompassed costs and fees on all relief sought in the complaint. As the defendant had the burden of clarity, the offer would be deemed to have been exclusive of costs and fees. The court further found the plaintiff was a prevailing party because she accepted an offer, even if it was a low amount of $3,850. The court further agreed the fee claim of $16,940.50, applying $300 hourly rate for the lead partner and $185 hourly rate for the associate, were appropriate but reduced the fee to half or $8,470.25 plus costs, because the court found the degree of success obtained was minimized by the employee having the employer’s pre-litigation severance offer for the same amount, noting the severance would have carried restrictions.

Allen v. Garden City Co-Op, Inc., 651 F. Supp. 2d 1249 (D. Kan. Aug. 27, 2009)

In Allen v. Garden City Co-Op, Inc., Allen, a certified public accountant brought claims against her former employer alleging discrimination in pay in violation of the Equal Pay Act, Title VII, and the Kansas Act Against Discrimination, and the Co-Op moved for summary judgment. Though the court denied the Co-Op’s motion with respect to liability, it granted summary judgment on the plaintiff’s claim for punitive damages for retaliation because it found that punitive damages are unavailable under section 216(b) of the FLSA, which provides only for remedies that are compensatory in nature.

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IX. ADMINISTRATIVE ACTION

X. COLLECTIVE ACTION

Halabicky et al. v. University of Michigan, No. 08-10065, 2009 WL 912629 (E.D. Mich. March 30, 2009)

In Halabicky v. University of Michigan, the U.S. District Court for the Eastern District of Michigan, denied a motion for class certification by the plaintiffs, a group of nurse practitioners at the defendant’s hospital. The plaintiffs claimed a statistically significant disparate impact could be shown between the pay received by the female nurse practitioners (“NPs”) and their individual male counterparts, the physicians’ assistants (“PAs”), whom the Plaintiffs claimed that, despite the different title, did the same work as the NPs but for more pay.

The court applied Federal Rule of Civil Procedure 23 to the motion for certification and found that the plaintiffs could not meet their burdens of commonality and typicality. Under the underlying facts of the case, the court found that the NPs and PAs were distinct groups set apart by different qualifications, regulations, licensure requirements, job classifications and compensation schemes (for instance the NAs were subject to a collective bargaining agreement whereas the PAs were not subject to a common system-wide authority setting the compensation, but rather compensation that varied from department to department).

In denying the motion, the court found that the plaintiffs’ naming of an individual male PA to each female NA to establish that there was an individual male PA doing the same work as an individual female NA took away from the commonality of the injury and the individual proofs required to establish the disparate treatment would not be the same for each NA and therefore their claim as a whole lacks the typicality required for class treatment.

The court further noted that because the plaintiffs did not allege in their underlying claim any specific employment practices that caused a disparity in pay based on gender nor allege that the defendant hospital operates under a general policy of intentional discrimination, the plaintiffs failed to show any commonality in their claim. Further, the plaintiffs’ reliance on their statistical analysis fell short of exemplifying commonality as the analysis failed to compare like work to like work and account for functional differences. The court denied the plaintiffs’ motion for class certification, finding that the individual claims of the NAs predominated those of the class as there was no common point of comparison on a class-wide basis between NPs and PAs.

XI. RETALIATION

Kennedy v. Virginia Polytechnic Inst. & State Univ., No. 7:08-cv-579, 2009 WL 1321691 (W.D. Va. May 12, 2009)

In Kennedy, the U.S. District Court for the Western District of Virginia found that an internal complaint by an employee to an employer did not constitute protected activity under the EPA’s retaliation provision. The provision, 29 U.S.C. § 215(a)(3), provides that it is unlawful for any person to discharge or in any other manner discriminate against any employee because the employee has filed any complaint or instituted or caused to be instituted any proceeding under or

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related to the EPA, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

The plaintiff, an assistant director at the defendant’s University, complained internally and, later, externally (in a complaint filed with the EEOC), about wage discrimination and also retaliation by her employer for her complaints of wage discrimination. The University argued that under the EPA’s retaliation provision, the plaintiff’s internal complaint was not a sufficient trigger for a successful retaliation claim. The court agreed, citing the clause of the EPA’s retaliation provision concerning “complaints” and, relying on a prior decision of the Fourth Circuit (Whitten v. City of Easly, S.C., 62 Fed Appx. 477, 480 (4th Cir. 2003)) stating that Plaintiff’s internal complaints to her employer do not form the basis of a retaliation claim under the EPA’s retaliation provision.

However, the court did find that the actions taken by the plaintiff in filing a complaint externally (with the EEOC) were protected activity under the EPA’s retaliation provision. Accordingly, the court denied the portion of the University’s motion pertaining to alleged acts of retaliation that occurred after the date the plaintiff filed her external complaint, effectively narrowing the plaintiff’s retaliation claim to acts occurring after that time.


In Allen v. Garden City Co-Op, Inc., a certified public accountant, brought claims against her former employer alleging discrimination in pay and retaliation in violation of the Equal Pay Act, Title VII, and the Kansas Act Against Discrimination, and the Co-Op moved for summary judgment. With respect to Allen’s retaliation claim, the court concluded that she established a prima facie case, and that the Co-Op’s proffered a legitimate, nondiscriminatory reason for her discharge. However, the court found that there were several inconsistencies and weaknesses in defendants’ explanation for requesting plaintiff’s resignation, including the fact that (1) the problems with the financial statements and lack of interaction between Allen’s department and the petroleum department had been occurring prior to her taking over the CFO position, but her predecessor was not terminated for those reasons; (2) the Co-Op had given inconsistent reasons for Allen’s termination at the time of discharge and in response to interrogatories; and (3) the required Board approval for Allen’s termination was not documented in the meeting minutes. The court found that these inconsistencies and weaknesses established pretext and precluded summary judgment on Allen’s retaliation claim.

XII. RELATED STATE LAW CLAIMS

XIII. PROCEDURAL CONSIDERATIONS, MISC.

A. Amount in Controversy

B. Evidence


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In Lord v. Pennsylvania National Mutual Casualty Insurance, the U.S. District Court for the Middle District of Pennsylvania, the court denied the defendant’s motion for reconsideration of its earlier ruling denying the defendant’s motion for summary judgment of the EPA claim, finding that the challenged order failed to contain any “manifest errors of law or fact.” Finally, in WL 2242364, the court denied the defendant’s motion in limine seeking to exclude evidence of harassment and comments regarding manipulation of its pay system by the plaintiff’s former supervisor, finding the evidence highly probative and admissible subject to a limiting instruction.

Lord was employed by the defendant as a manager of worker’s compensation. She brought suit under the EPA, alleging that she was compensated at a lower salary than a male co-worker who held an equivalent position. The defendant asserted that the positions were not equivalent, and that the pay disparity was based on a factor other than sex in that it used the Hays Point System in determining pay, which “objectively” calculated salary in reliance upon several variables, including job descriptions. In response, Lord argued that the Hays Point System was capable of manipulation and that it had been manipulated in her case by a former supervisor in order to punish her for harassment complaints.

In connection with its in limine motion, the defendant argued that the evidence regarding actions by the former supervisor were irrelevant, since the EPA claim only required proof that the plaintiff performed work equivalent to that of her male comparator. While conceding that the disputed evidence was not relevant to the plaintiff’s prima facie case, the court found that in light of the shifting burdens under the EPA, once the defendant sought to rely on the Hays Point System, the validity of that system was put in issue and evidence in that regard became relevant. In the alternative, the defendant argued that the evidence was unduly prejudicial and should be excluded under Rule 403. The court found that while prejudicial, the evidence was also highly probative and should therefore be admitted with a limiting instruction indicating that it was to be relied upon solely for the purpose of evaluating of the legitimacy of the Hays Point System.

Smith v. Janey, et al, No. 06-1671, 2009 WL 2584821 (D.D.C. Aug. 24, 2009)

In Smith, an African American male was employed as a contract specialist and received favorable performance ratings in that position. One year later, the plaintiff’s position was eliminated together with three similar positions held by two African American females and one Caucasian male. The plaintiff was rehired in a temporary position within three months. He continued to work in a temporary capacity until February 2006, when his employment ended for failure to return to work. The plaintiff left work on February 17, 2006, claiming stress, just before a meeting with management relating to the conclusion of an investigation into a complaint of sex harassment leveled against the plaintiff. The plaintiff was instructed to return to work or submit documentation to substantiate the need for a medical leave but failed to do so in a timely manner resulting in termination of his employment. The plaintiff brought suit claiming discrimination under Title VII, the ADEA, the ADA and the EPA.

The court granted summary judgment on Smith’s EPA claim, holding that the plaintiff’s assertion in an affidavit that two of his female co-workers were promoted to permanent positions while he remained in a temporary, lower-grade position was insufficient to establish that the plaintiff was performing work substantially equal to that of the alleged comparators, the performance of which work required substantially equal skills, effort, and responsibility, as is required to establish a prima facie violation of the EPA.

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Byrne v. Telesector Resources Group, Inc., 339 Fed.Appx. 13 (2d Cir. July 14, 2009)

In Byrne v. Telesector, the court upheld the lower court’s grant of the defendant’s motion for summary judgment on plaintiff’s EPA claim because the plaintiff failed to establish a prima facie case. The court found that the plaintiff failed to offer any evidence detailing the job duties of the two male comparators she alleged were paid more than she, because she had only offered her own affidavit and evidence demonstrating that she had the same job title as one of her male co-workers who was paid more. The court noted that the plaintiff had failed to show equal job content with her male comparators, and that the same job title, without more detail, was not enough to establish a prima facie case.

C. Waiver and Release

Prise v. Alderwoods Group, 657 F. Supp. 2d 564 (W.D. Pa. Sept. 21, 2009)

In Prise v. Alderwoods Group, two female funeral home employees filed suit alleging that the Alderwoods Group violated the Equal Pay Act by paying them less than similarly situated male location managers.

The court rejected the defendant’s argument that an earlier settlement agreement entered into with Rady through the EEOC’s mediation program barred her claims. The settlement agreement, which had been submitted to the court heavily redacted, waived claims under the EPA that had been filed with the EEOC, not substantive rights under the EPA. As such, the court refused to consider the settlement agreement a prospective waiver of rights and moved on to the substance of Rady’s claims.

D. Estoppel and Res Judicata

E. Burden of Proof

Brown v. Macon-Bibb County Planning & Zoning Com'n, No. 5:07-cv-161, 2009 WL 1241374 (M.D. Ga. 2009)

In Brown v. Macon-Bibb, the defendant filed a Motion for Summary Judgment arguing that the plaintiff had failed to meet her burden of establishing a prima facie case under the EPA. The court explained that it was the defendant, not the plaintiff, who had the initial burden of proving that the plaintiff could not establish a prima facie case. The defendant’s original brief did not explain what specific duties the male comparator had as opposed to the plaintiff’s duties, only that the positions and duties were not comparable. The brief also asserted that the defendant was entitled to summary judgment on every affirmative defense available under the EPA, although it did not offer a detailed explanation sufficient to support that contention. The plaintiff also failed to address the defendant’s argument that the two employees had different job duties and responsibilities.

The district court ordered the defendant employer to file a supplemental brief “that clearly articulates its argument that [the male comparator’s] duties and responsibilities as the Planning Director were unequal to the plaintiff’s as the Zoning Director,” with citations to the record. In its order, the court prohibited the defendant from discussing the male comparator’s job duties and responsibilities in his previous position, as they were not relevant.

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Harris, et al. v. Auxilium Pharm., Inc., No. CIVA 4:07-cv-3938, 2009 WL 315 275 (S.D. Tex. Sept. 28, 2009)In Harris v. Auxilium Pharmaceuticals, the U.S. District

Court for the Southern District of Texas found that the plaintiffs established sufficient issues of material fact to survive the defendant’s summary judgment motion and therefore denied the defendant’s motion as to the EPA claim.

The plaintiffs, a group of female medical sales consultants (MSCs), contended that Auxilium paid male MSCs more than female MSCs in violation of the EPA. While the plaintiffs proffered evidence that several male comparators were paid higher gross compensation, the defendant asserted that only some and not all male MSCs made more than the plaintiffs did, and the plaintiffs’ comparison to some male MSCs is random and therefore not sufficient evidence of prima facie wage discrimination. The court was not persuaded by the defendant’s arguments, finding it compelling that the defendant did not attempt to argue that these male MSCs who did make more had differing responsibilities or some other non-discriminatory rationale for the alleged anomaly. The court found that the plaintiffs made their prima facie claim of wage discrimination under the EPA and the burden shifted to the defendant to demonstrate the disparate pay resulted from factors other than sex.

In attempting to meet its burden, the defendant offered evidence that there are several factors making up an MSC’s gross compensation, including base salary, incentive compensation, and contest award money. The defendant also argued that a MSCs base salary is based on factors such as prior experience, tenure, performance and the geographical location in which the MSC works. Further, the defendant claimed it would review MSCs compensation on an annual basis to determine if these factors were met. The defendant also argued that based on these factors, there were some female MSCs who were paid more than the plaintiffs and other males.

The court did not find the defendant’s claims tenable as the evidence showed that the review of compensation didn’t begin in the first two years the plaintiffs’ claim wage disparity existed, and there were no specific written criteria in place for either equity increases or merit increases. The court found that the plaintiffs also created a fact issue with respect to pay disparity relating to a quota system, which the defendant argued did not result in a pay difference. Accordingly, the court found that the plaintiffs had raised sufficient issues of material fact to withstand the defendant’s motion for summary judgment and, therefore, the court denied that part of the defendant’s motion for summary judgment relating to the plaintiffs’ EPA claim.

F. Discovery

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REPORT OF THE EQUAL PAY ACT SUBCOMMITTEE … Case Law from January 1, 2009 through December 31, ......

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