REPORT OF THE EQUAL PAY ACT … ASSOCIATES, LTD. P.O. Box 909 Little Rock, Arkansas 72203...

REPORT OF THEEQUAL PAY ACT SUBCOMMITTEE of the

ABA SECTION OF LABOR AND EMPLOYMENT LAWFEDERAL LABOR STANDARDS LEGISLATION COMMITTEE

February 2011

Covering Case Law from January 1, 2010 through December 31, 2010

Laura B. FriedelSubcommittee Chair

LEVENFELD PEARLSTEIN, LLC2 North LaSalle Street, Suite 1300

Chicago, Illinois 60602(312) 476-7510

[email protected]

Kristin Ashworth BURR & FORMAN LLPRSA Tower11 North Water StreetSuite 2200Mobile, Alabama [email protected](251) 345-8215

Michelle CarterCARTER CARTER FRIES &

GRUNSCHLAG 44 Montgomery St., Ste. 2405 San Francisco, CA [email protected](415) 989-7693

Steve Copley RC ASSOCIATES, LTD.P.O. Box 909 Little Rock, Arkansas [email protected](501) 626-9220

Ashley G. Eddy SCHIFF HARDIN LLP233 S. Wacker DriveSuite 6600 Chicago, IL 60606 [email protected](312)258-5651

Danny W. JarrettSamantha JarrettJACKSON LEWIS LLP4300 San Mateo Blvd. NEAlbuquerque, NM [email protected]@jacksonlewis.com(505) 830-8247

Michelle LeBeau OGLETREE, DEAKINS NASH,

SMOAK & STEWART, PLLC33 Bloomfield Hills Parkway, Ste. 120Bloomfield Hills, Michigan [email protected](248) 593-6400

Domenick Vita 553 Martling Ave. Tarrytown, NY [email protected]

Christopher WilliamsPROSKAUER ROSE, LLP650 Poydras St., Ste. 1800New Orleans, LA [email protected] (504) 310-2033

TABLE OF CONTENTS

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

II. THE EQUAL PAY ACT’S COVERAGE ................................................................... 1A. General.............................................................................................................. 1Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238 (10th Cir. July 13, 2010) ....................... 1B. Individual Liability........................................................................................... 2Jennings-Jones v. Wal-Mart Stores, Inc., Case No. 2:10-cv-739, 2010 WL 4683999 (M.D. Ala. Oct. 14, 2010) ........................................................................................................... 2

III. COURT ENFORCEMENT ......................................................................................... 2A. Arbitration........................................................................................................ 2B. Employees of the States .................................................................................... 2Spann-Wilder v. City of N. Charleston, Case No. 2:08-0156, 2010 U.S. Dist. LEXIS 85717 (D.S.C. Aug. 13, 2010)..................................................................................................... 2C. Employees of the Federal Government............................................................ 3Griffin v. United States, 621 F.3d 1363 (Fed. Cir. Oct. 7, 2010) .................................................. 3

IV. THE PRIMA FACIE CASE......................................................................................... 3A. Different Wages to Employees of the Opposite Sex ........................................ 3Leatherwood v. Anna’s Linens Co., Case No. 09-15427, 2010 U.S. App. LEXIS (11th Cir. June 17, 2010) ..................................................................................................................... 3Tomkins v. Allied Barton Security Services, Case No. 09-cv-1954, 2010 WL 3582627 (S.D.N.Y. Aug. 2, 2010) ............................................................................................................. 4Flaherty v. Massapequa Public Schools, Case No. 08-cv-2298, 2010 WL 4639313, (E.D.N.Y. Nov. 9, 2010) ............................................................................................................. 4Mitchell v. Developers Diversified Realty Corp., 2010 WL 3855547 (E.D. Tex. Sept. 8, 2010) .......................................................................................................................................... 5B. Equal Work on Jobs Requiring Equal Skill, Effort, and Responsibility........ 5Benson v. California Correctional Peace Officers Association, Case No. 2:08-cv-0886, 2010 U.S. Dist. LEXIS 23454 (E.D.Ca. Feb. 23, 2010) ............................................................... 5EEOC v. Kokh, LLC, Case No. 07-1043, 2010 WL 3155900 (W.D. Okla. Aug. 9, 2010) ........... 6Adams v. Northstar Location Services, LLC, Case No. 09-cv-1063, 2010 WL 3911415 (W.D.N.Y. Oct. 5, 2010)............................................................................................................. 7Bartlett v. NIBCO, Inc., Case No. 3:08-cv-597, 2010 WL 1779887 (N.D. Ind. Apr. 28, 2010) .......................................................................................................................................... 7Lewis v. D.R. Horton, Inc., Case Nos. 09-2032 & 09-2137, 2010 U.S. App. LEXIS 6094 (10th Cir. Mar. 24, 2010) ............................................................................................................ 7Marlow v. American Collectible Network, Inc., Case No. 3:08-cv-249, 2010 WL 306426 (E.D. Tenn. Aug. 3, 2010)........................................................................................................... 8McCann v. Veterans Haven, Case No. 08-5031, 2010 WL 4103669 (D.N.J. Oct. 18, 2010) .......................................................................................................................................... 9

Sharp v. Ephraim McDowell Reg'l. Med. Ctr., Inc., Case No. 5:07-362, 2010 U.S. Dist. LEXIS 16616 (E.D. Ky. Feb. 24, 2010)....................................................................................... 9Sobotka v. Cunningham, Case No. 08 C 6728, 2010 U.S. Dist. LEXIS 72784 (N.D. Ill. July 13, 2010)........................................................................................................................... 10Schultz v. Department of Workforce Development, Case No. 09-CV-274, 2010 WL 4293813 (W.D. Wis. Oct. 21, 2010).......................................................................................... 11Rhoades v. Young Women’s Christian Association of Greater Pittsburg, Case No. 09-0261, 2010 U.S. Dist. LEXIS 75426 (W.D. Pa. July 27, 2010) .................................................. 12Rizzo v. The Kraus Organization, Case No. 10-CV-272, 2010 U.S. Dist. LEXIS 57615 (E.D.N.Y. May 25, 2010).......................................................................................................... 12Hicks v. Concorde Career College, Case No. 08-2410, 695 F.Supp. 2d 779 (W.D. Tenn. Feb. 26, 2010)........................................................................................................................... 13Clayton v. Vanguard Car Rental, Case No. 09-0188, 2010 WL 5476787 (D.N.M. Dec. 9, 2010) ........................................................................................................................................ 13Bauer v. University of Missouri, Case No. 07-04044-CV, 2010 WL 1752024 (W.D. Mo. May 3, 2010) ............................................................................................................................ 14Payne v. Goodman Manufacturing Company, LP, Case No. 08-cv-92, 2010 U.S. Dist. LEXIS 67191 (E.D. Tenn. July 6, 2010).................................................................................... 14Myers v. BP North America, Inc. and BP Products North America, Inc., Case No. 08-C-3619, 2010 U.S. Dist. LEXIS 23393 (N.D. Ill. Mar. 11, 2010)................................................... 14Randall v. Rolls-Royce Corporation, Case No. 06-cv-860, 2010 WL 3816700 (S.D. Ind. Sept. 22, 2010)................................................................................................................... 15C. Similar Working Conditions.......................................................................... 16

V. DEFENSES ................................................................................................................ 16A. Seniority System ............................................................................................. 16Henze v. City of Lee's Summit, Missouri, Case No. 09-00099-CV, 2010 U.S. Dist. LEXIS 61501 (W.D. Mo. June 21, 2010) .................................................................................. 16Allender v. University of Portland, 689 F. Supp. 2d 1279 (D. Or. Feb. 9, 2010)......................... 16B. Merit System................................................................................................... 17Sharp v. Ephraim McDowell Reg'l. Med. Ctr., Inc., Case No. 5:07-362, 2010 U.S. Dist. LEXIS 16616 (E.D. Ky. Feb. 24, 2010)..................................................................................... 17C. System Pegging Earnings to Quantity of Production.................................... 17D. Factors Other Than Sex ................................................................................. 17Benson v. California Correctional Peace Officers Association, Case No. 2:08-cv-0886, 2010 U.S. Dist. LEXIS 23454 (E.D. Ca. Feb. 23, 2010) ............................................................ 17Flaherty v. Massapequa Public Schools, Case No. 08-cv-2298, 2010 WL 4639313, (E.D.N.Y. Nov. 9, 2010) ........................................................................................................... 19Gaujacq v. EDF, Inc., 601 F.3d 565 (D.C. Cir. Apr. 9, 2010) .................................................... 19Leatherwood v. Anna’s Linens Co., Case No. 09-15427, 2010 U.S. App. LEXIS (11th Cir. June 17, 2010) ................................................................................................................... 20Marley v. University of South Carolina, Case No. 3:08-937, 2010 WL 3852244 (D.S.C. Aug. 20, 2010).......................................................................................................................... 20

Sharp v. Ephraim McDowell Reg'l. Med. Ctr., Inc., Case No. 5:07-362, 2010 U.S. Dist. LEXIS 16616 (E.D. Ky. Feb. 24, 2010)..................................................................................... 20Latham v. West Corporation, Case No. 08-2323, 2010 U.S. Dist. LEXIS 17089 (D. Az. Feb. 25, 2010)........................................................................................................................... 21Hicks v. Concorde Career College, 695 F.Supp. 2d 779 (W.D. Tenn. Feb. 26, 2010)................. 21Clayton v. Vanguard Car Rental, Case No. 09-0188, 2010 WL 5476787 (D.N.M. Dec. 9, 2010) ........................................................................................................................................ 22Allender v. University of Portland, 689 F. Supp. 2d 1279 (D. Or. Feb. 9, 2010)......................... 22Ford v. Goodwill Industries of Southwest Oklahoma and North Texas, Inc., Case No. 09-578, 2010 U.S. Dist. LEXIS 53462 (W.D. Okla. June 1, 2010).................................................. 22Rhoades v. Young Women’s Christian Association of Greater Pittsburg, Case No. 09-0261, 2010 U.S. Dist LEXIS 75426 (W.D. Pa. July 27, 2010) ................................................... 23Myers v. BP North America, Inc. and BP Products North America, Inc., Case No. 08-C-3619, 2010 U.S. Dist. LEXIS 23393 (N.D. Ill. Mar. 11, 2010)................................................... 23Nelson v. Chattahoochee Valley Hospital Society, Case No. 09-cv-700, 2010 WL 3039829 (M.D. Ala. Aug. 4, 2010)............................................................................................ 24Ralston v. Bell Aerospace Services, Inc., Case No. 09-cv-379, 2010 U.S. Dist. LEXIS 58529 (M.D. Ala. June 14, 2010) .............................................................................................. 24Randall v. Rolls-Royce Corporation, Case No. 06-cv-860, 2010 WL 3816700 (S.D. Ind. Sept. 22, 2010)................................................................................................................... 25E. Pretext............................................................................................................. 25Finch v. Xavier University, 689 F.Supp.2d 955 (S.D. Ohio Feb. 10, 2010) ................................ 25Merchant v. Prince George’s County, Case No. 09-0256, 2010 U.S. Dist. LEXIS 11271 (D. Md. Feb. 9, 2010) ............................................................................................................... 26Rhoades v. Young Women’s Christian Association of Greater Pittsburg, Case No. 09-0261, 2010 U.S. Dist. LEXIS 75426 (W.D. Pa. July 27, 2010) .................................................. 27Latham v. West Corporation, Case No. CV-08-2323, 2010 U.S. Dist. LEXIS 17089 (D. Az. Feb. 25, 2010) .................................................................................................................... 27Ralston v. Bell Aerospace Services, Inc., Case No. 09-cv-379, 2010 U.S. Dist. LEXIS 58529 (M.D. Ala. June 14, 2010) .............................................................................................. 28

VI. STATUTE OF LIMITATIONS................................................................................. 28Boaz v. Federal Express Corporation, Case No. 2:09-cv-02232, 2010 WL 3834869 (W.D. Tenn. Sept. 24, 2010)................................................................................................................ 28Summy-Long v. Pa. State Univ., Case No. 1:06-cv-1117, 2010 U.S. Dist. LEXIS 27953 (M.D. Pa. Mar. 24, 2010); 2010 U.S. Dist. LEXIS 116369 (M.D. Pa. Nov. 2, 2010).................. 29Shine v. TD Bank Fin. Group, Case No. 09-4377, 2010 U.S. Dist. LEXIS 69529, 26-30 (D.N.J. July 12, 2010)............................................................................................................... 30Schultz v. Department of Workforce Development, Case No. 09-CV-274, 2010 WL 4293813 (W.D. Wis. Oct. 21, 2010).......................................................................................... 30Vazquez v. Valley Hospital Medical Center, Case No. 2:09-CV-01811, 2010 WL 3860722 (D. Nev. Sept. 27, 2010) ............................................................................................. 31Randall v. Rolls-Royce Corporation, Case No. 06-cv-860, 2010 WL 3816700 (S.D. Ind. Sept. 22, 2010)................................................................................................................... 31

VII. DAMAGES................................................................................................................. 32

Ventura v. Bebo Foods, Case No. 08-621, 2010 WL 4910887 (D.D.C. Dec. 3, 2010) ................ 32

VIII. ADMINISTRATIVE ACTION ................................................................................. 32

IX. COLLECTIVE ACTION .......................................................................................... 33Rollins v. Alabama Community College, Case No. 2:09-CV-636, 2010 WL 4269133 (M.D. Ala. Oct. 25, 2010) ......................................................................................................... 33

X. RETALIATION......................................................................................................... 33Rizzo v. The Kraus Organization, Case No. 10-CV-272, 2010 U.S. Dist. LEXIS 57615 (E.D.N.Y. May 25, 2010).......................................................................................................... 33

XI. RELATED STATE LAW CLAIMS.......................................................................... 34

XII. PROCEDURAL CONSIDERATIONS, MISC. ........................................................ 34A. Amount in Controversy.................................................................................. 34B. Pleading .......................................................................................................... 34Emmons v. The City University of New York, Case No. 09-CV-537, 2010 U.S. Dist. LEXIS 54140 (E.D.N.Y. June 1, 2010) ..................................................................................... 34Ezekiel v. Tift County School District, Case No. 7:08-CV-127, 2010 U.S. Dist. LEXIS 8230 (M.D. Ga. Feb. 1, 2010) ................................................................................................... 35Adams v. Northstar Location Services, LLC, Case No. 09-CV-1063, 2010 WL 3911415 (W.D.N.Y. Oct. 5, 2010)........................................................................................................... 35Allen v. Magic Media, Inc., Case No. 09-4139, 2010 WL 4739748 (D. Kan. Nov. 16, 2010) ........................................................................................................................................ 36McCann v. Veterans Haven, Case No. 08-5031, 2010 WL 4103669 (D.N.J. Oct. 18, 2010) ........................................................................................................................................ 36Schultz v. Department of Workforce Development, Case No. 09-CV-274, 2010 WL 4293813 (W.D. Wis. Oct. 21, 2010).......................................................................................... 37Vazquez v. Valley Hospital Medical Center, Case No. 2:09-CV-01811, 2010 WL 3860722 (D. Nev. Sept. 27, 2010) ............................................................................................. 37Henderson v. Wal-Mart Stores Texas, LLC, Case No. H-10-0317, 2010 U.S. Dist. LEXIS 36889 (S.D. Tex. Apr. 14, 2010) ............................................................................................... 38Gibson v. American Apartment Management Company, Case No. 3:10-CV-253, 2010 WL 3656038 (E.D. Tenn. Sept. 14, 2010) ................................................................................. 38C. Evidence.......................................................................................................... 39Finch v. Xavier University, 689 F.Supp.2d 955 (S.D. Ohio Feb. 10, 2010) ................................ 39Bauer v. University of Missouri, Case No. 07-04044-CV, 2010 WL 3516196 (W.D. Mo. Aug. 31, 2010).......................................................................................................................... 40Leatherwood v. Anna’s Linens Co., Case No. 09-15427, 2010 U.S. App. LEXIS (11th Cir. June 17, 2010) ................................................................................................................... 41D. Waiver and Release ........................................................................................ 41E. Estoppel and Res Judicata ............................................................................. 41Righter v. Zuccarelli, Case No. 09-C-07563, 2010 U.S. Dist. LEXIS 49156 (N.D. Ill. May 17, 2010) .......................................................................................................................... 41

F. Burden of Proof .............................................................................................. 42G. 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

Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238 (10th Cir. July 13, 2010)

In Skrzypczak v. Roman Catholic Diocese, the Tenth Circuit Court of Appeals affirmed the trial court’s decision dismissing the plaintiff’s Title VII and EPA claims on the grounds that they were barred by the ministerial exception doctrine. Derived from the First Amendment’s guarantee of religious freedom, the ministerial exception prohibits courts from addressing employment claims brought against religious organizations when the decisions were based on the organization’s religious principals or practices. Although the ministerial exception usually comes into play in employment suits involving an ordained minister, the doctrine extends to any employee who serves “in a position that is important to the spiritual and pastoral mission of the church.”

The plaintiff in Skrzypczak was employed with the Diocese as director of the Department of Religious Formation. He argued that the ministerial exception was inapplicable because her job responsibilities were entirely administrative in nature. While acknowledging that at least some of the plaintiff’s principal duties were purely administrative, the Skrzypczak panel nonetheless found that her Title VII discrimination claims were barred because the evidence conclusively established that her role with the Diocese was central to the spiritual mission of the church. The Skrzypczak court further held that the ministerial exception applied with equal force to the plaintiff’s causes of action under the EPA.

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B. Individual Liability

Jennings-Jones v. Wal-Mart Stores, Inc., Case No. 2:10-cv-739, 2010 WL 4683999 (M.D. Ala. Oct. 14, 2010)

In Jennings-Jones v. Wal-Mart Stores, Inc., a former employee proceeded pro se against her employer and several individual defendants in their individual and official capacities alleging a violation of Title VII and a claim that she was paid less than her white male counterparts, which the court inferred was a claim under the EPA. The court held that although the EPA does not provide for individual liability, individual employees can fall within the EPA’s broad definition of employer. In order to meet this definition, an individual defendant must be either involved in the day-to-day operation or have some direct responsibility for the supervision of the employee. Under this broad definition, the court allowed the individual defendants to be served with an Amended Complaint asserting only the EPA claims.

III. COURT ENFORCEMENT

A. Arbitration

B. Employees of the States

Spann-Wilder v. City of N. Charleston, Case No. 2:08-0156, 2010 U.S. Dist. LEXIS 85717 (D.S.C. Aug. 13, 2010)

In Spann-Wilder v. City of N. Charleston, a part-time municipal judge filed suit under the EPA claiming that she was paid less than a white male who served in a similar judicial position. In a previous order, the District Court had determined that the plaintiff’s position made her a public officer and therefore instructed the parties to brief the issue of whether a public officer qualified as an employee under the EPA. Applying the common-law agency test, the court held that the plaintiff was, in fact, an employee for purposes of the EPA because (1) the defendant controlled the number of hours the plaintiff worked and the administrative details incident to her work; (2) the defendant was the source of instrumentalities of the plaintiff’s work; (3) the defendant determined whether to reappoint the plaintiff to her position after her two-year statutory term expired; (4) the defendant had the right to assign additional work to the plaintiff; (5) the plaintiff received a salary as opposed to being paid based upon the completion of a specific job; (6) the plaintiff carried out an essential function of the city; and (7) the plaintiff participated in the defendant’s retirement program and had the option of receiving health benefits.

The court next considered whether the plaintiff’s claims were barred by the policymaking exemption to the EPA. Because there was no Fourth Circuit authority addressing this issue, the court examined the reasoning employed by other federal appellate courts. For example, the First and Eighth Circuits had determined that appointed state judges were subject to the policymaking exemption in the context of the ADEA. In contrast, the Second Circuit had determined that state court judges did not fall within the policymaking exception. The Spann-Wilder court followed the approach adopted by the First and Eighth Circuits and determined that that plaintiff’s job as an appointed municipal judge fell within the policymaking exception to the EPA. In reaching this conclusion, the court found that the plaintiff necessarily exercised discretion when she presided over cases and issued rulings. In light of the court’s finding that the plaintiff was an

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appointee on a policymaking level, she was therefore exempt from the protections of the EPA. Accordingly, the court granted the defendant’s motion for summary judgment and dismissed the plaintiff’s EPA claims with prejudice.

C. Employees of the Federal Government

Griffin v. United States, 621 F.3d 1363 (Fed. Cir. Oct. 7, 2010)

In Griffin v. United States, a female employee of the US Army Reserve Command filed a claim under the EPA and Title VII. The District Court identified a material factual dispute warranting trial on the EPA claim, but because the employee sought more than $10,000 in damages, the District Court transferred that claim to the Court of Federal Claims. However, the trial court in the Court of Federal Claims dismissed the EPA claim for lack of jurisdiction relying on the Federal Circuit’s decision in County of Cook concluding that her EPA and Title VII claims were the “same” for purposes of 28 U.S.C. § 1500. The Federal Circuit overturned its prior decision in County of Cook and held that a claim filed simultaneously in the Court of Federal Claims and in District Court did not violate § 1500. As such, the claim could proceed.

IV. THE PRIMA FACIE CASE

A. Different Wages to Employees of the Opposite Sex

Leatherwood v. Anna’s Linens Co., Case No. 09-15427, 2010 U.S. App. LEXIS (11th Cir. June 17, 2010)

In Leatherwood v. Anna’s Linens Co., the plaintiff alleged that a male co-worker holding the same position of store keyholder was paid one dollar more per hour in violation of the EPA. The District Court granted the defendant’s motion for summary judgment, finding that the plaintiff was unable to establish a prima facie case under the EPA because plaintiff failed to contradict defendant’s contention that 12 female keyholders were paid the same or higher hourly rate than their male co-workers. The plaintiff appealed the District Court’s ruling. In an unpublished opinion, the Eleventh Circuit disagreed with the court’s holding but upheld the summary judgment ruling on other grounds.

In order to establish a prima facie case under the EPA, a party must show that the employer paid employees of the opposite sex different wages for equal work for jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions. The Eleventh Circuit held that the only evidence offered by the defendant as proof regarding the other female keyholder’s wages was a handwritten statement from its human resources director. The court noted that, although the statement declared “under penalty of perjury that the foregoing is true and correct,” the statement was not notarized. The court held that the declaration as given may not meet the requirements of 28 U.S.C. 1746, regarding unsworndeclarations under penalty of perjury. Since it was unclear whether the defendant could rely on the statement in support of its motion for summary judgment, and the defendant did not dispute the fact that plaintiff was paid less that her male counterpart; the Eleventh Circuit held that plaintiff in fact established a prima facie case under the EPA. Nonetheless, the court found that the company had established that the wage differential was based on a factor other than sex and the Court of Appeals upheld the grant of summary judgment.

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Tomkins v. Allied Barton Security Services, Case No. 09-cv-1954, 2010 WL 3582627 (S.D.N.Y. Aug. 2, 2010)

In Tomkins v. Allied Barton Security Services, an employee, who worked as a Level I security guard proceeded pro se against her employer, a security services company, alleging discrimination based on her race and sex in violation of Title VII and the EPA. The employee’s EPA claim was based on her contention that most of her employer’s Level II guards, who were paid a higher wage than Level I guards, were male. However, the court found that the employee did not allege, and could not prove, that her employer paid female guards in one category less than it paid male guards in the same category, an essential element of an EPA claim. Thus, the court granted the employer’s motion for summary judgment, and the employee’s EPA claim was dismissed.

Flaherty v. Massapequa Public Schools, Case No. 08-cv-2298, 2010 WL 4639313, (E.D.N.Y. Nov. 9, 2010)

In Flaherty v. Massapequa Public Schools, the plaintiff, the former superintendent of schools, brought an EPA claim based on the disparity between her salary and that of her male successor. When her contract expired in 2006, Flaherty’s salary was $208,000; her successor was hired in 2008 with a base salary of $240,000.

Defendant argued first that Flaherty could not establish a prima facie case because of the time that passed between Flaherty’s 2006 compensation being set and her successor’s 2008 compensation being set. The court initially stated that because of the effect of cost of living increases in salary, it could not directly compare Flaherty’s 2006 salary with her successor’s 2008 salary. However, the court looked closer and calculated what it felt Flaherty’s salary would have been in 2008. Taking into account the salary increase that Flaherty received at the end of her first year of employment, the court calculated Flaherty’s hypothetical 2008 salary at $224,972.80. Because this amount was still significantly less than her replacement’s salary, the court found that Flaherty had established a prima facie case under the EPA.

The court also rejected the defendant’s argument that summary judgment should be granted because the pay disparity was based on a factor other than sex. The defendant argued that the pay disparity was based on the successor’s long tenure with the school district, the fact that he acted as acting superintendant for the 2007-2008 school year without additional compensation, and the fact that his pay as deputy superintendant (his prior position) was $219,990.97. While acknowledging that there was considerable evidence that the successor’s pay was based entirely on non-gender based business considerations, the court questioned this evidence. Noting that Flaherty held a Ph.D while her successor did not, that setting a permanent salary at a higher level wasn’t consistent with trying to compensate for the lack of increase during the successor’s year as acting superintendant, and that there was no evidence that the successor demanded a higher salary, the court found that there were triable issues of fact with respect to the defendant’s defenses and denied its motion for summary judgment.

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Mitchell v. Developers Diversified Realty Corp., 2010 WL 3855547 (E.D. Tex. Sept. 8, 2010)

In Mitchell v. Developers Diversified Realty, the plaintiff was a successful Regional Leasing Manager for Defendant who had been employed for several years and was one of the top leasing managers in 2006 in terms of overall performance and received highest overall compensation. Following a corporate reorganization, Mitchell was transferred to a different region, her productivity dropped, and she received a below-average performance review for 2007 from her new manager. Although not put on a formal performance improvement plan, the plaintiff was required to provide weekly reports and, because her performance did not improve sufficiently, her employment was terminated on October 20, 2008. She was ultimately replaced by a younger male. The plaintiff filed suit claiming age and gender discrimination (Title VII and ADA) and violation of the EPA. In granting summary judgment, the court noted that the EPA does not regulate raises or bonuses directly and, instead, simply requires that the plaintiff receive total compensation at least equal to that of male employees with equal performance. Summary judgment was appropriate because the plaintiff failed to present evidence to show that the defendant violated the EPA because the defendant paid her more in total wages for 2006 than either of the two male comparables identified.

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

Benson v. California Correctional Peace Officers Association, Case No. 2:08-cv-0886, 2010 U.S. Dist. LEXIS 23454 (E.D.Ca. Feb. 23, 2010)

In Benson v. California Correctional Peace Officers Association, the District Court for the Eastern District of California granted the defendant’s motion for summary judgment. The plaintiff began employment with CCPOA in 1998 as a receptionist and then became a secretary. She was paid pursuant to the General Secretary pay scale, which was a tiered system based on years of employment and job position. In early 2003, she applied for and was awarded a position as an Editorial Assistant with CCPOA’s magazine. Because the duties in her new position were similar to those of her prior position, no change to her pay scale was made. After approximately nine months in the new position, the plaintiff took a leave of absence due to difficulties working with her supervisor. Upon returning to work, she was assigned to a different supervisor who oversaw CCPOA’s Membership Department. The plaintiff assumed additional duties within the Membership Department, in addition to retaining at least some of her Editorial Assistant duties. However, she continued to be paid under the General Secretary pay scale. In connection with her additional duties, the plaintiff assisted a male employee who had been in the Membership Department as a Membership Records Clerk since 1997. The male comparator did not perform any editorial duties, and as a Membership Records Clerk he performed various duties which the plaintiff did not. He also trained the plaintiff regarding her duties in the Membership Department. The male employee was paid pursuant to the Membership Records Clerk pay scale, which was a multi-tiered pay scale similar to the General Secretary Pay scale. At the time the plaintiff assumed her duties in the Membership Department, and throughout the remainder of her tenure in the department, the male employee was paid at a higher rate than the plaintiff. In 2006, the plaintiff took a stress-related leave of absence and filed for workers compensation as a result of issues with her supervisor. CCPOA sought alternate positions for the plaintiff that would not require her to report to the same supervisor but determined that no such positions existed within CCPOA. CCPOA advised the plaintiff that it was unwilling to remove the supervisor from her

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position in order to facilitate the plaintiff’s return to work. However, CCPOA did offer several alternative processes regarding the reporting structure that were intended to ameliorate any issues that arose between the plaintiff and her supervisor. The plaintiff was thereafter cleared by her treating psychologist to return to work on two separate occasions, but on neither occasion did the plaintiff actually return to work or contact CCPOA about her employment. As a result, CCPOA deemed the plaintiff to have resigned, and her employment with CCPOA was terminated in May of 2006 based on its policy regarding failure to report to work.

The plaintiff filed suit claiming violations of the EPA and ADA, alleging that CCPOA failed to accommodate her return to work after a disability and failed to pay her and a male comparator equally for similar work. In connection with her EPA claims, the court applied a two-step analysis to determine whether the plaintiff’s position and that of the male comparator were “substantially equal.” The court first looked to whether the two jobs had a “common core” of tasks, and then looked at whether there were any additional tasks required of one position but not the other that would make the jobs “substantially different.” The court also considered whether any pay differential was the result of a seniority or merit system, a system measuring earnings by quantity or quality of production, or any other factor other than sex. After reviewing the facts, the court found that the plaintiff failed to make a prima facie case. The record showed that the male comparator performed at least six significant duties which the plaintiff did not perform, and therefore the court held that the two positions did not have a “common core” of tasks. In the alternative, the court held that CCPOA had shown that the differential was based on a “factor other than sex” in that the disparity in pay was based on seniority and on the differences in the two pay scales. The plaintiff was unable to show that these bases for the disparity were pretextual, and therefore the court granted summary judgment of the EPA claim.

EEOC v. Kokh, LLC, Case No. 07-1043, 2010 WL 3155900 (W.D. Okla. Aug. 9, 2010)

In Equal Employment Opportunity Commission v. Kokh, LLC, the District Court for the Western District of Oklahoma denied the defendants’ motion for summary judgment on the individual plaintiff’s EPA claim. The individual plaintiff, an African-American female, was hired by Kokh in 1996 as a general assignment reporter. She was considered a “non-contract” employee, and as a result any salary increases were generally based on the annual raise percentage approved for that category of employees. However, there was some discretion for local management to vary the approved percentage in individual cases. On several occasions during her employment, the individual plaintiff was told that there was no money in the budget to increase her salary, though local management gave mid-year pay raises to three Caucasian female employees. Further, during the individual plaintiff’s employment, the defendants hired other general assignment reporters, including two male reporters and a Caucasian female reporter, who performed the same or similar job duties as the individual plaintiff and had similar skills and abilities, but were paid a higher annual salary. The individual plaintiff and these comparators were all designated as general assignment reporters, worked in the same department, and reported to the same supervisor. Upon learning of these pay disparities, the individual plaintiff complained to the defendants regarding the unequal pay, and proceeded to file a complaint with the EEOC.

The EEOC filed suit against Kokh and its parent company under Title VII alleging disparate pay based on sex and race, and the individual plaintiff intervened, adding claims for violation of the EPA and retaliation in violation of 42 U.S.C. §1981. In connection with the EPA claim, the

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court held that there were sufficient facts and evidence to create a genuine dispute of fact. The court observed that both male comparators were hired at starting salaries substantially higher than the individual plaintiff’s salary and that all three worked as general assignment reporters in the same department for the same manager. Although there were some differences in the responsibilities and efforts of the reporters, the court felt that a reasonable jury could find that they performed substantially equal work.

Adams v. Northstar Location Services, LLC, Case No. 09-cv-1063, 2010 WL 3911415 (W.D.N.Y. Oct. 5, 2010)

In Adams v. Northstar Location Services, the plaintiff filed an EPA claim against her former employer and Northstar moved to dismiss for failure to state a claim upon which relief could be granted. Though the plaintiff alleged that she was paid less than a male employee, she did not allege that she and the male comparator performed “equal work on jobs requiring equal skill, effort, and responsibility” nor did she allege that their respective jobs “are performed under similar working conditions.” In addition to noting the foregoing, the court also noted that the plaintiff failed to describe her job responsibilities versus those of the male comparator. Though the plaintiff claimed that she had more tenure, experience, and responsibilities with Northstar than that of her male comparator, the court held that the plaintiff failed to allege any facts showing that she and the male comparator “performed substantially equal work.” As such, she failed to state a claim upon which relief could be granted under the EPA.

Bartlett v. NIBCO, Inc., Case No. 3:08-cv-597, 2010 WL 1779887 (N.D. Ind. Apr. 28, 2010)

In Bartlett v. NIBCO, Inc., the plaintiff claimed that she was paid less as an associate product manager than a male product manager, Brien Welsh, who she claimed performed the same work, even though they had different titles. The court concluded that the individuals did not perform equal work and granted summary judgment in NIBCO’s favor as to that claim.

In considering whether the individuals performed equal work, the court reviewed the skill required for the job, including factors such as experience, education, and ability. Welsh had more experience in product management than Bartlett had when she was hired, and Welsh’s position required abilities not required of Bartlett's position in that Welsh was responsible for strategic development, decisions regarding product line development and marketing, and for developing and executing corporate growth, advertising, and pricing strategies. As to the consideration of Bartlett and Welsh's responsibilities, Welsh identified numerous tasks that Welsh, not Bartlett, performed, and Bartlett merely made an unsupported assertion that she performed “all the tasks of a product manager” without offering any "concrete facts regarding the tasks she performed." Regarding the effort factor, the court noted that Welsh’s additional responsibilities likely created more stress, but Bartlett did not even attempt to show that her position required equal effort. Accordingly, the court found that Bartlett and Welsh’s “positions did not share a common core of tasks,” nor did Bartlett “point to another higher paid male NIBCO employee who performed the same work as her,” and her EPA claim failed as a matter of law.

Lewis v. D.R. Horton, Inc., Case Nos. 09-2032 & 09-2137, 2010 U.S. App. LEXIS 6094 (10th Cir. Mar. 24, 2010)

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In Lewis v. D.R. Horton, Inc., the female plaintiff worked for defendant employer for six years. During four years of her employment she held the title of Vice President of Financial Operations/Division Controller in the New Mexico Division. In this position, plaintiff was responsible for supervising the accounting department of the New Mexico Division and preparing various reports, including the five-year budget projections and land acquisition funding summary. In 2004, the position of Chief Financial Officer was added to the plaintiff’s division. The defendant hired a male with 20 years of experience working in the home-building industry, including six years of experience working as a CFO. At the time the male CFO was hired, he was working for a competitor and earning $120,000 annually in base salary. The defendant employer hired the male CFO at a base salary of $120,000 per year, plus bonus. At the time he was hired, plaintiff’s base salary was $56,000 per year, plus a bonus of $65,000.

After the male CFO was hired, plaintiff’s title was changed to Controller. The plaintiff’s job duties remained the same after the male CFO was hired, except the CFO was made responsible for preparing three reports that were previously prepared by plaintiff. The CFO worked as an advisor to the corporate CEO regarding construction, marketing, cost infrastructure, and long-term financial planning.

In 2005, the plaintiff received a significantly lower bonus. When questioned, the company explained that the bonus plan was discretionary and since she was no longer Vice President/ Division Controller she would not be on the bonus program after the first quarter. She was offered a reassignment to the land department, which was also not on the bonus program. The plaintiff then tendered her resignation, stating as part of her letter of resignation that she felt her job was being threatened if she if she did not accept the lower position in the land department.

The plaintiff brought suit against defendant employer alleging salary discrimination on the basis of sex in violation of the EPA. The defendant filed a motion for summary judgment which was granted by the District Court. The plaintiff appealed to the Tenth Circuit.

The Tenth Circuit, in an unpublished opinion, upheld the District Court’s holding, stating that plaintiff did not meet the burden of establishing a prima facie case. The court held that, in order to satisfy her burden, plaintiff must provide evidence that she performed substantially all of the duties of a higher-paid co-worker, and not simply that a higher-paid co-worker took over some of her job duties. Although the new CFO did take over some of the reports formerly prepared by plaintiff, she could not refute evidence offered by the company that the CFO’s role was primarily strategic, while the controller was responsible for the day to day activities of the accounting team. The Tenth Circuit ruled that the plaintiff did not present triable evidence to the contrary and summary judgment was appropriate.

Marlow v. American Collectible Network, Inc., Case No. 3:08-cv-249, 2010 WL 306426 (E.D. Tenn. Aug. 3, 2010)

In Marlow v. American Collectible Network, Inc., the plaintiff filed suit alleging that a male employee, Mr. West, was paid higher wages for work that was equal in skill, effort, and responsibility. The court granted summary judgment against the plaintiff for failure to state a prima facie case. The plaintiff claimed that, unlike Mr. West, she did not receive annual employment evaluations and salary reviews which would have made her eligible to receive a pay raise. Further, the plaintiff alleged that she was paid lower wages despite holding professional

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accreditations and certifications that Mr. West did not possess. The plaintiff, who started out as a show host, eventually became an internal consultant, working on a number of projects that required expertise on gemstones. Such projects included: working on a comprehensive gemstone book; taking pictures of gemstones; training employees in the call center and return department on identifying gemstones; restructuring the method by which the company graded gemstones; and working with the quality control department. The evidence showed that Mr. West, who was also an internal consultant, worked on activities related to his experience in manufacturing, operations, project management and logistics. Mr. West’s projects included developing methods to automate tasks and the development of plans for a new call center. Mr. West was eventually promoted to a managerial position.

The court stated the fact that the plaintiff and Mr. West briefly held the same title was irrelevant to plaintiff’s claim. Instead, when determining if a comparator is appropriate, the focus is on actual job duties and requirements. The court held that, although the plaintiff and Mr. West held the same title for a short period, they clearly had different job requirements and responsibilities. Therefore, Mr. West was not a proper comparator for purposes of an EPA claim.

McCann v. Veterans Haven, Case No. 08-5031, 2010 WL 4103669 (D.N.J. Oct. 18, 2010)

In McCann v. Veterans Haven, the court dismissed the pro se plaintiff’s amended complaint for failure to state a claim. The plaintiff filed a motion for reconsideration of the court’s dismissal of the amended complaint or, in the alternative, leave to file a new amended complaint, alleging claims under the EPA. The court denied plaintiff’s motion. The court held that denial for reconsideration was proper because the plaintiff failed to show that dispositive factual matters or controlling decisions of law were brought to the court’s attention but not considered. The court noted that plaintiff did not point to any new evidence of change in controlling law. Additionally, under the 12(b)(6) standard, the complaint could not survive since the plaintiff did not include any allegations in the complaint that employees of the opposite sex were being paid more for doing substantially similar work.

The court also denied the plaintiff’s request for relief to file a second amended complaint since an amendment would be futile. In plaintiff’s proposed second amended complaint, he stated that his employer “paid him $9.00 per hour which was less than female workers, $11.00 per hour, who were probationary, similar to plaintiff.” The court held this conclusory statement was not sufficient to meet the standard of legal sufficiency under Rule 12(b)(6). Even the proposed second amended complaint did not provide any facts sufficient to demonstrate that his work was of “substantially equal skill, effort and responsibility” or that he worked under “similar working conditions.”

Sharp v. Ephraim McDowell Reg'l. Med. Ctr., Inc., Case No. 5:07-362, 2010 U.S. Dist. LEXIS 16616 (E.D. Ky. Feb. 24, 2010)

In Sharp v. Ephraim McDowell Reg'l. Med. Ctr., Inc., the District Court granted the employer’s motion for summary judgment on the grounds that the plaintiff could not establish a prima faciecase under the EPA. More specifically, the Sharp court found that the plaintiff had failed to identify any male employees who performed substantially equal work for greater pay. Although the plaintiff identified a number of male employees who allegedly received more pay for

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performing substantially the same work, the court found that these individuals were not proper comparators for purposes of establishing a prima facie case.

First, the court determined that two of the alleged comparators worked in positions that required advanced training that the plaintiff did not have and therefore could not be considered proper comparators. In addition, another proposed comparator’s job duties included performing tasks that the plaintiff admittedly did not perform. Accordingly, the court held that the plaintiff failed to demonstrate that these male employees held positions comparable to her own.

Next, the court found that four other male employees were not proper comparators because they did not work at the same “establishment” as the plaintiff. In reaching this decision, the court first recognized that physically distinct places of business generally are considered separate establishments for purposes of the EPA. Because the alleged comparators undisputedly worked at different locations than the plaintiff, she was required to demonstrate “unusual circumstances” that would warrant treating the physically distinct entities as a single establishment. However, the court determined that the plaintiff failed to present sufficient evidence of unusual circumstances. As support for this conclusion, the court noted that there was no centralized administrative unit responsible for setting wages at the different work locations nor was there any evidence suggesting that the employees frequently interchanged work locations.

As an alternative ground for granting the defendant’s summary judgment motion, the court held that the defendant had conclusively established that any alleged wage disparity was because of a factor other than sex. In that regard, the court determined that any wage differential between the plaintiff’s rate of pay and the compensation of her alleged comparators was the result of their respective levels of education and experience. Because the qualifications and background of the alleged comparators justified any alleged pay disparities, the court concluded that the defendant’s compensations decisions were based on neutral factors having nothing to do with gender.

Sobotka v. Cunningham, Case No. 08 C 6728, 2010 U.S. Dist. LEXIS 72784 (N.D. Ill. July 13, 2010)

In Sobotka v. Cunningham, the District Court granted the defendants’ motion for summary judgment on the grounds that the plaintiff could not establish a prima facie case of discrimination under the EPA. The dispositive issue in Sobotka was whether the plaintiff could establish that she and a higher paid male colleague performed job duties requiring equal skill, effort, and responsibility. In finding that the plaintiff had failed to meet her burden, the court first held that the male employee’s position required additional training and skill. In support of this conclusion, the court noted that the male employee’s educational background was far more extensive than that of the plaintiff. Furthermore, the male comparator had previously been the plaintiff’s supervisor for six years and currently worked in a more elite department than the plaintiff.

The Sobotka court next considered whether the two positions required equal responsibility. The court determined that the male employee’s responsibilities were substantially different because he engaged in a number of job tasks that the plaintiff did not, such as participating in the formulation of administrative and legislative policy issues, and authoring a number of policy papers on behalf of the employer. Additionally, the employer had authorized the male employee

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to speak on the organization’s behalf on numerous policy topics at professional conferences and seminars, whereas the plaintiff had received authorization to speak on only two discrete issues.

Finally, the court held that the male employee’s position required additional effort because he was required to spend a significant amount of time after normal business hours, including nightsand weekends, to fulfill his job duties doing community outreach, preparing policy documents, attending conferences, and speaking on panels. The plaintiff, in contrast, had only participated in a handful of training sessions, planned two training conferences, and attended lunchtime meetings. Moreover, much of this work had been performed on a voluntary basis and was not a part of the plaintiff’s official job duties.

Because the plaintiff had failed to demonstrate that her male colleague worked in a position that required equal levels of skill, effort, and responsibility, she failed to establish a prima facie case under the EPA. Accordingly, the court granted the defendants’ motion for summary judgment.

Schultz v. Department of Workforce Development, Case No. 09-CV-274, 2010 WL 4293813 (W.D. Wis. Oct. 21, 2010)

In Schultz v. Department of Workforce Development, the Western District of Wisconsin granted in part and stayed in part defendants’ motion for summary judgment. Schultz was a civil servant who rose through the ranks at her employer, an agency of the State of Wisconsin. Schultz brought a claim under the EPA for salary discrimination, naming four male comparators to make her prima facie case under the EPA. The court found that the plaintiff did not file her complaint in a timely fashion as to two of those four male comparators, as they left the defendant’s employ more than three years prior to the plaintiff filing her complaint, beyond the allowed statute of limitations. The court found that the other two male comparators had “duties that differed significantly in degree of effort and responsibility” and “additional responsibilities that Schultz did not perform” that justified their additional compensation. The court also found that market forces, education and experience further justified the pay discrepancy in the case of one of the two remaining comparators.

Despite the defendant’s successful statute of limitations defense and showing of differences in all of plaintiff’s named comparators, the court stayed in part the defendant’s motion for summary judgment and granted plaintiff’s motion to amend her amended complaint to name another male comparator not previously named in her complaint or amended complaint. Schultz first learned of this male comparator when he was deposed as part of the plaintiff’s instant case. The court weighed the prejudices of allowing the plaintiff to amend her complaint a second time to name this new male comparator. The court noted that while plaintiff should have identified the proper male comparator in her complaint, the defendants had notice of plaintiff’s interest in this male comparator when plaintiff noticed his deposition and therefore defendant had ample time to have supplemented their motion for summary judgment on any claims brought against it in relation to this new male comparator. The defendants unsuccessfully argued that plaintiff’s assertion to amend her complaint was “futile”, noting that this male comparator had a starting salary equal to his pay at a similar position for the State of North Carolina, but giving no further reasons for paying him more than her when he started in the same position. The court noted, after a review of cases on point, that it is “debatable whether an employee’s salary at his prior job will alwaysbe sufficient - no matter what other circumstances exist - to defeat an Equal Pay Act claim by a lesser-paid member of the opposite sex who performs the same work.” The court determined

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that, rather than waste judicial resources, it would allow plaintiff to amend her complaint to include this new male comparator and also allow the defendant time to supplement the evidence in favor of summary judgment as it concerns this male comparator.

Rhoades v. Young Women’s Christian Association of Greater Pittsburg, Case No. 09-0261, 2010 U.S. Dist. LEXIS 75426 (W.D. Pa. July 27, 2010)

In Rhoades v. Young Women’s Christian Association of Greater Pittsburg, a female accountant formerly employed by Young Women’s Christian Association of Greater Pittsburgh (“YWCA”), a not for profit, brought claims of discrimination and retaliatory discharge under the EPA.

The District Court for the Western District of Pennsylvania found that plaintiff did not meet her burden of showing that there was a genuine issue for trial on her pay discrimination claim. The plaintiff failed to establish her prima facie case that her comparators, both male, performed equal work to Rhoades. Her first comparator, hired prior to her, made $1,000 more than she. The court found that he negotiated a salary based on prior work experience and sought a salary at a range higher than plaintiff sought. The court found that her second comparator, hired after Rhoades was terminated, was hired for a position that was materially different than Rhoades’ position. The court noted that the YWCA had upgraded the accounting position Rhoades occupied to a management position and performed a market survey to determine the proper compensation for this new role. The court further noted that “an employer may consider the marketplace value of the skills of a particular individual when determining his or her salary.” The court found that the male comparator hired after Rhoades into this upgraded position had a different set of skills, longer experience and management experience that Rhoades did not have. Accordingly, the court found the plaintiff failed to show that both male comparators were paid more by the YWCA based on their gender and granted the defendants’ motion for summary judgment dismissing Rhoades’ claim of discrimination under the EPA.

Rizzo v. The Kraus Organization, Case No. 10-CV-272, 2010 U.S. Dist. LEXIS 57615 (E.D.N.Y. May 25, 2010)

In Rizzo v. The Kraus Organization, the Eastern District of New York granted in part and deniedin part defendant’s 12(b)(6) motion to dismiss. Rizzo, a female lawyer who worked as in-house counsel for the defendants, a federally-subsidized residential housing developer, claimed she was paid less than a male comparator and had to leave her job of eighteen years due to her employer’s retaliatory treatment after she complained internally of gender discrimination.

On Rizzo’s claim of salary discrimination on the basis of gender, defendants argued in their motion to dismiss that plaintiff could not make out a claim that she was performing work equal to another employee “in a job requiring equal skill, effort and responsibility.” Rizzo contended her male comparator was a subordinate paralegal who made $10,000 more than she when he was hired. Rizzo also contended that he was a suspended attorney who, like she, performed legal research and provided the results to defendants. The court noted that as a suspended lawyer-paralegal, the male comparator could not provide the legal advice and interpretation that Rizzo could on such legal research. Further, the defendants argued that Rizzo’s comparator had a different title than she and, as a lawyer with a suspended law license, he could only appear for the defendants in administrative proceedings while Rizzo could appear in court. However, the court noted that the plaintiff only needed to show that her role and that of her male comparator

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were “substantially equal” and found that she did so in showing that both she and her male comparator performed substantially similar job functions in respect of their legal research and appearances before adjudicative bodies. Accordingly, the court denied that part of the defendant’s motion to dismiss.

Hicks v. Concorde Career College, Case No. 08-2410, 695 F.Supp. 2d 779 (W.D. Tenn. Feb. 26, 2010)

In Hicks v. Concorde Career College, an African-American male employee who worked as an admissions representative brought an action against his employer alleging that his female counterparts were hired at a higher rate of pay in violation of the EPA, that his white male counterparts were paid more than him in violation of Title VII and that he was subject to a racially hostile work environment, racial discrimination, and retaliation in violation of Title VII. The employer argued that the plaintiff could not make out a prima facie case under the EPA because he was not paid less than his female counterparts and because he was not performing equal work compared to his female counterparts.

To support its motion, the employer asserted that only those employees within plaintiff’s particular classification were proper comparators, which the court rejected in favor of a broader group that included all female admissions representatives that performed substantially similar, but not identical, work to the plaintiff. Although the court looked at a larger number of female employees, it still found that the employer had based the plaintiff’s pay on factors other than sex. The employer produced evidence that the plaintiff was hired at a lower rate of pay than his female comparators because he only had nine months of verifiable employment history, while his female counterparts had significantly more verifiable employment experience. The plaintiff rebutted this showing by arguing that he had a much longer employment history but was unable to verify it because his former employers ceased operations. Ultimately, the court sided with the employer, finding that verifiable experience was a legitimate factor other than sex and granted the employer’s motion for summary judgment on the EPA claim.

Clayton v. Vanguard Car Rental, Case No. 09-0188, 2010 WL 5476787 (D.N.M. Dec. 9, 2010)

In Clayton v. Vanguard Car Rental, a female manager brought an action against her employer, arental car company, alleging age and gender discrimination under the ADEA, the EPA, the New Mexico Human Rights Act, and state law claims for breach of implied contract. She argued that male general managers in other cities doing the same work as she received higher base pay and bonuses. The court rejected this argument, despite the fact that the jobs had the same title and performed the same general duties, because the plaintiff presented no evidence that the jobs in other cities were substantially equal to her work in Albuquerque. The employer presented evidence that other general manager positions required different levels of skill, effort and responsibility, which justified the pay differential and rendered the employee unable to establish her prima facie case of wage discrimination under the EPA.

The employee also argued that she could establish a prima facie case under the EPA by presenting evidence that she was replaced by a male manager who was hired at a base salary that was $14,000 higher than hers. The employer rebutted that contention by demonstrating that any pay discrepancy between the plaintiff and her male replacement was based on factors other than

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sex, namely that it initially offered her replacement the same base salary but he declined and demanded an increase prior to accepting the general manager position. The court held that the employer had based the wage decision on a factor other than sex and granted the employer’s motion for summary judgment on the EPA claim.

Bauer v. University of Missouri, Case No. 07-04044-CV, 2010 WL 1752024 (W.D. Mo. May 3, 2010)

In Bauer v. University of Missouri, an advanced practice nurse who worked for the University of Missouri filed an EPA claim alleging that she was paid less for performing the same job than a male advanced practice nurse, Benjamin Francisco. The parties filed cross summary judgment motions on the EPA claim. The plaintiff and Francisco were both employed as advanced practice nurses at the University, and the plaintiff claimed that they performed substantially similar job duties (clinics, rounds, writing orders, teaching, education, research), had similar skills and training, were working towards their doctorate degrees, were on the faculty at the School of Nursing, spent the majority of their time in clinics and with patient care, and that both applied for funding from outside sources. The University responded that Francisco’s salary was higher than the plaintiff’s because of his education, experience, clinical practice, and productivity, and because Francisco served as a Principal Investigator on externally sponsored research grants and traveled for work. The plaintiff claimed, however, that there was no evidence Francisco’s “additional activities” were required duties of his position. The court concluded that genuine issues of material fact existed as to whether the plaintiff established a prima facie EPA case, as well as to whether the University could establish any affirmative defenses. Specifically, the court determined that there was no evidence as to what the University believed justified the individuals’ different salaries. As such the cross motions were denied.

Payne v. Goodman Manufacturing Company, LP, Case No. 08-cv-92, 2010 U.S. Dist. LEXIS 67191 (E.D. Tenn. July 6, 2010)

In Payne v. Goodman Manufacturing Company, the plaintiff was employed as a Desktop Support Specialist, but despite her title, the majority of her work was telecommunications, rather than desktop work. Payne brought suit alleging that two male co-workers who held the same position that she did earned more than she did. However, the court held that the plaintiff could not meet her prima facie burden of demonstrating that their jobs required equal skill, effort, and responsibility. The plaintiff spent the majority of her time working on telecommunication and administrative tasks, while her two male co-workers obtained additional computer software and hardware communication. Her desktop duties were limited to very basic desktop functions, which the majority of an office’s personnel could handle. Accordingly, the court granted summary judgment on the plaintiff’s Equal Pay Act claim.

Myers v. BP North America, Inc. and BP Products North America, Inc., Case No. 08-C-3619, 2010 U.S. Dist. LEXIS 23393 (N.D. Ill. Mar. 11, 2010)

In Myers v. BP North America, Inc. and BP Products North America, the plaintiff began her employment in 1996 in the UK and was transferred to the BP offices in Warrenville, Illinois in 2000, where she worked as crude oil trader for West African Crude Oil Bench (WAF Bench). The plaintiff was promoted to “book leader” of the WAF Bench in 2005, whereupon her compensation was comprised of a base salary and bonus linked to performance of the WAF

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Bench and her contributions. Upon learning in 2007 that her bonus for 2006 would be lower than she believed she earned, the plaintiff complained to upper management about her bonus calculation. The plaintiff then received a negative performance evaluation in April of 2007, in which her reaction to her 2006 bonus was characterized as “unprofessional” and “unacceptable” and criticized the plaintiff for showing her displeasure with her 2006 bonus with colleagues. Myers responded that she believed she was being singled out for harsher treatment with respect to the 2006 bonus (but did not cite gender). Defendant claimed it received complaints about her behavior from co-workers and, in July of 2007, advised Myers that her international assignment in the U.S. was being terminated and allowed her three months to repatriate to the UK. When the plaintiff did not repatriate, her employment was terminated. Myers brought suit claiming gender discrimination and retaliation under Title VII, violation of the EPA, breach of contract and fraudulent misrepresentation.

For her EPA claim, Myers alleged that she was paid less than male book leaders and crude traders in the organization, even though their positions required equal work and were performed with similar conditions. The court held that very significant disparities in performance must exist in order to render jobs which appear to have a “common core” unequal for EPA purposes on the basis of significant differences in financial performance. Moreover, the court held that summary judgment is not appropriate where both sides present cogent arguments supporting their contentions that the plaintiff’s position did or did not involve substantially equal skill, effort, and responsibility from the positions of the alleged comparables as traders because resolution of these competing arguments involves weighing of evidence, sifting of facts, and drawing of inferences, all of which make the inquiry (in this case at least) inappropriate for summary judgment. Accordingly, the court granted summary disposition on all counts except the EPA claims.

Randall v. Rolls-Royce Corporation, Case No. 06-cv-860, 2010 WL 3816700 (S.D. Ind. Sept. 22, 2010)

In Randall v. Rolls-Royce, two female employees brought suit claiming that Rolls-Royce had engaged in a pattern and practice of discriminating against women at high salary management pay grades. The court denied their motion for class certification and the two plaintiffs proceeded with their individual claims. On defendant's motion for summary judgment, the court applied a two year statute of limitations and held that the plaintiffs' EPA claims failed as a matter of law.

With respect to the statute of limitations, the plaintiffs argued that the three-year limitations period for a willful violation. the only evidence presented by the plaintiffs was a news release issued by the U.S. Department of Labor in 1998 which touted an OFCCP compliance investigation and audit agreement between the OFCCP and the predecessor of Rolls-Royce at its Indianapolis facility. The court refused to consider the news release both because it was unauthenticated (and thus inadmissible) and because a lack of evidence regarding the predecessor's compensation policies rendered the release's relevance highly questionable. As the news release was the only evidence proffered by the plaintiffs to support a finding of willfulness, the court refused to consider the plaintiffs' claims from before the date two years before the complaint was filed.

As for the plaintiffs' timely claims, the court found that the plaintiffs were unable to show that they were performing equal work to that performed by comparably-employed men and that their

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EPA claim thus failed. Citing Sims-Fingers, 493 F.3d 768 (7th Cir. 2007), the court underscored the fact that the male employees to whom the plaintiffs pointed as comparators occupied distinctly different upper-level management positions within the company, with different job duties, and significantly longer tenures with the company. The court further noted that the plaintiffs' claims were undermined by their admission that each of the employees at their level was responsible for different products and parts and had varying numbers of employees answering to them at different times. In addition, the court found that evidence presented by the plaintiffs established that she had been paid more than one of her comparators and just $55 per year (less than 3/100 of a percent) lower than another, a difference that the court found to be trifling. As such, the court granted the defendant summary judgment on the plaintiffs’ EPA claims.

C. Similar Working Conditions

V. DEFENSES

A. Seniority System

Henze v. City of Lee's Summit, Missouri, Case No. 09-00099-CV, 2010 U.S. Dist. LEXIS 61501 (W.D. Mo. June 21, 2010)

In Henze v. City of Lee's Summit, Missouri, a female employee sued her city employer in state court for sex discrimination and harassment in violation of the Missouri Human Rights Act, sex-based wage discrimination in violation of the EPA, the tort of abuse of process, and the tort of malicious prosecution. Her employer removed the case to federal court on the basis of the employee’s EPA claim.

The employee, an animal control officer, alleged that she was denied overtime pay for cleaning her truck, which her male counterparts received. The city did not directly defend or address the reasons why the female employee was not paid overtime for cleaning her truck, and instead, focused on its use of a seniority system for regular pay and the fact that the plaintiff received overtime pay for other reasons as affirmative defenses to the EPA claim. The court found that the employer’s failure to fully explain the discrepancies in overtime pay precluded the court from granting the employer’s motion for summary judgment on the EPA claim.

Allender v. University of Portland, 689 F. Supp. 2d 1279 (D. Or. Feb. 9, 2010)

In Allender v. University of Portland, a highly published and scholarly professor who had entered the university as an adjunct and was promoted upward over her career to the associate professor position, brought suit claiming that two male associate professor colleagues were paid more than she.

The University utilized a four tier professor system--adjunct, assistant, associate, and full. The University did not utilize an articulated metric based on seniority within each tier to differentiate on salaries. Each tier, however, required different elements for promotion to its accompanying title. Once within a given tier, pay was largely arbitrary. The evidence showed that two male colleagues within the associate tier and within her area (economics) made more than she did. One colleague, a male, always made less.

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On its motion for summary judgment, the University argued that Allender’s lower pay was the result of her being disciplined and of the male professors’ greater seniority. The court rejected both of the University’s arguments and denied the University’s motion. With respect to the University’s claim that Allender was paid less because she had been disciplined, the court found that the discipline defense only works for the times immediately following the discipline and it does not address the time beforehand or subsequent to the end of the discipline. The court found that the University could not rely on a “seniority” system to defend the pay disparity because the fact that Allender’s colleagues were brought in at different pay levels and promoted at different rates showed that the pay disparity was subjective and not objectively based on how long they had been in the position.

B. Merit System


In Sharp v. Ephraim McDowell Reg'l. Med. Ctr., Inc., the District Court granted the employer’s motion for summary judgment on the grounds that the plaintiff could not establish a prima faciecase under the EPA. More specifically, the Sharp court found that the plaintiff had failed to identify any male employees who performed substantially equal work for greater pay. Although the plaintiff identified a number of male employees who allegedly received more pay for performing substantially the same work, the court found that these individuals were not proper comparators for purposes of establishing a prima facie case.

First, the court determined that two of the alleged comparators worked in positions that required advanced training that the plaintiff did not have and therefore could not be considered proper comparators. In addition, another proposed comparator’s job duties included performing tasks that the plaintiff admittedly did not perform. Accordingly, the court held that the plaintiff failed to demonstrate that these male employees held positions comparable to her own.

Next, the court found that four other male employees were not proper comparators because they did not work at the same “establishment” as the plaintiff. In reaching this decision, the court first recognized that physically distinct places of business generally are considered separate establishments for purposes of the EPA. Because the alleged comparators undisputedly worked at different locations than the plaintiff, she was required to demonstrate “unusual circumstances” that would warrant treating the physically distinct entities as a single establishment. However, the court determined that the plaintiff failed to present sufficient evidence of unusual circumstances. As support for this conclusion, the court noted that there was no centralized administrative unit responsible for setting wages at the different work locations nor was there any evidence suggesting that the employees frequently interchanged work locations.

C. System Pegging Earnings to Quantity of Production

D. Factors Other Than Sex

Benson v. California Correctional Peace Officers Association, Case No. 2:08-cv-0886, 2010 U.S. Dist. LEXIS 23454 (E.D. Ca. Feb. 23, 2010)

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In Benson v. California Correctional Peace Officers Association, the District Court for the Eastern District of California granted the defendant’s motion for summary judgment. The plaintiff began employment with CCPOA in 1998 as a receptionist and then became a secretary. She was paid pursuant to the General Secretary pay scale, which was a tiered system based on years of employment and job position. In early 2003, she applied for and was awarded a position as an Editorial Assistant with CCPOA’s magazine. Because the duties in her new position were similar to those of her prior position, no change to her pay scale was made. After approximately nine months in the new position, the plaintiff took a leave of absence due to difficulties working with her supervisor. Upon returning to work, she was assigned to a different supervisor who oversaw CCPOA’s Membership Department. The plaintiff assumed additional duties within the Membership Department, in addition to retaining at least some of her Editorial Assistant duties. However, she continued to be paid under the General Secretary pay scale. In connection with her additional duties, the plaintiff assisted a male employee who had been in the Membership Department as a Membership Records Clerk since 1997. The male comparator did not perform any editorial duties, and as a Membership Records Clerk he performed various duties which the plaintiff did not. He also trained the plaintiff regarding her duties in the Membership Department. The male employee was paid pursuant to the Membership Records Clerk pay scale, which was a multi-tiered pay scale similar to the General Secretary Pay scale. At the time the plaintiff assumed her duties in the Membership Department, and throughout the remainder of her tenure in the department, the male employee was paid at a higher rate than the plaintiff. In 2006, the plaintiff took a stress-related leave of absence and filed for workers compensation as a result of issues with her supervisor. CCPOA sought alternate positions for the plaintiff that would not require her to report to the same supervisor but determined that no such positions existed within CCPOA. CCPOA advised the plaintiff that it was unwilling to remove the supervisor from her position in order to facilitate the plaintiff’s return to work. However, CCPOA did offer several alternative processes regarding the reporting structure that were intended to ameliorate any issues that arose between the plaintiff and her supervisor. The plaintiff was thereafter cleared by her treating psychologist to return to work on two separate occasions, but on neither occasion did the plaintiff actually return to work or contact CCPOA about her employment. As a result, CCPOA deemed the plaintiff to have resigned, and her employment with CCPOA was terminated in May of 2006 based on its policy regarding failure to report to work. The plaintiff filed suit claiming violations of the EPA and ADA, alleging that CCPOA failed to accommodate her return to work after a disability and failed to pay her and a male comparator equally for similar work.

In connection with her EPA claims, the court applied a two-step analysis to determine whether the plaintiff’s position and that of the male comparator were “substantially equal.” The court first looked to whether the two jobs had a “common core” of tasks, and then looked at whether there were any additional tasks required of one position but not the other that would make the jobs “substantially different.” The court also considered whether any pay differential was the result of a seniority or merit system, a system measuring earnings by quantity or quality of production, or any other factor other than sex. After reviewing the facts, the court found that the plaintiff failed to make a prima facie case. The record showed that the male comparator performed at least six significant duties which the plaintiff did not perform, and therefore the court held that the two positions did not have a “common core” of tasks. In the alternative, the court held that CCPOA had shown that the differential was based on a “factor other than sex” in that the disparity in pay was based on seniority and on the differences in the two pay scales. The

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plaintiff was unable to show that these bases for the disparity were pretextual, and therefore the court granted summary judgment of the EPA claim.

Flaherty v. Massapequa Public Schools, Case No. 08-cv-2298, 2010 WL 4639313, (E.D.N.Y. Nov. 9, 2010)

In Flaherty v. Massapequa Public Schools, the plaintiff, the former superintendent of schools, brought an EPA claim based on the disparity between her salary and that of her male successor. When her contract expired in 2006, Flaherty’s salary was $208,000; her successor was hired in 2008 with a base salary of $240,000.

Defendant argued first that Flaherty could not establish a prima facie case because of the time that passed between Flaherty’s 2006 compensation being set and her successor’s 2008 compensation being set. The court initially stated that because of the effect of cost of living increases in salary, it could not directly compare Flaherty’s 2006 salary with her successor’s 2008 salary. However, the court looked closer and calculated what it felt Flaherty’s salary would have been in 2008. Taking into account the salary increase that Flaherty received at the end of her first year of employment, the court calculated Flaherty’s hypothetical 2008 salary at $224,972.80. Because this amount was still significantly less than her replacement’s salary, the court found that Flaherty had established a prima facie case under the EPA.

The court also rejected the defendant’s argument that the pay disparity was based on a factor other than sex. The defendant argued that the pay disparity was based on the successor’s long tenure with the school district, the fact that he acted as acting superintendant for the 2007-2008 school year without additional compensation, and the fact that his pay as deputy superintendant (his prior position) was $219,990.97. While acknowledging that there was considerable evidence that the successor’s pay was based entirely on non-gender based business considerations, the court questioned this evidence. Noting that Flaherty held a Ph.D while her successor did not, that setting a permanent salary at a higher level wasn’t consistent with trying to compensate for the lack of increase during the successor’s year as acting superintendant, and that there was no evidence that the successor demanded a higher salary, the court found that there were triable issues of fact with respect to the defendant’s defenses and denied its motion for summary judgment.

Gaujacq v. EDF, Inc., 601 F.3d 565 (D.C. Cir. Apr. 9, 2010)

In Gaujacq v. EDF, Inc., the plaintiff appealed the District Court’s grant of summary judgment on her EPA claim. The D.C. Circuit upheld the District Court’s decision, agreeing that the defendant had established that the pay differential in question was based on a factor other than sex.

Both the plaintiff and her comparator were paid according to their rank in the company’s top-level executive system. While the plaintiff and her comparator were in the same level of the pay system, the plaintiff was classified as an R-3, while her comparator was classified as an R-1. The court found that although the system, by its terms, was based in part on subjective factors, subjectivity is permissible so long as there are demonstrable reasons for the decision unrelated to sex. Noting that the comparator had substantially more management experience than the

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plaintiff and unique skills, the court determined that no reasonable jury could find that the classification of the plaintiff as an R-1 and her comparator as an R-3 was based on her sex.


In Leatherwood v. Anna’s Linens Co., the plaintiff alleged that a male co-worker holding the same position of store keyholder was paid one dollar more per hour in violation of the EPA. The District Court granted the defendant’s motion for summary judgment, stating that plaintiff was unable to establish a prima facie case under the EPA because plaintiff failed to contradict defendant’s contention that 12 female keyholders were paid the same or higher hourly rate than their male co-workers. The plaintiff appealed the District Court’s ruling. In an unpublished opinion, the Eleventh Circuit disagreed with the District Court’s holding that the plaintiff had failed to establish her prima facie case but upheld the summary judgment ruling because the wage differential was based on a factor other than sex.

The company established that, due to staff shortage, they had to offer plaintiff’s comparator more money to lure him away from a competitor retailer. The plaintiff failed to offer any evidence calling into question the company’s claim that defendant was short-staffed when the male keyholder was hired or that he demanded more money. Based on this evidence, the Eleventh Circuit ruled that the District Court did not err in granting summary judgment with regard to plaintiff’s EPA claim.

Marley v. University of South Carolina, Case No. 3:08-937, 2010 WL 3852244 (D.S.C. Aug. 20, 2010)

In Marley v. University of South Carolina, the plaintiff was hired as tenure-track assistant professor at the employer’s School of Library and Information Science. The plaintiff was paid a nine-month salary of $50,000. The defendant employer also hired a male assistant professor at the Library School and offered him $53,000 with an additional $2,500 in moving expenses.

After the plaintiff failed to obtain tenure, she filed suit and included several types of discrimination claims, including allegations under the EPA. The plaintiff alleged that the male assistant professor was paid more in violation of the EPA. The court held that, although the plaintiff met her prima facie burden, summary judgment was appropriate because the University had established that the pay differential was justified by a factor other than sex. More specifically, the University provided evidence that the male assistant professor was paid more based on the University’s understanding that it had to pay him a larger amount due to applicable immigration law. The court noted that whether the employer’s understanding of the immigration law was correct was not the question in the case. Rather, the court held that the difference in pay was justified because it was based on a factor other than sex and granted summary judgment after the plaintiff failed to rebut defendant’s explanation.


In Sharp v. Ephraim McDowell Reg'l. Med. Ctr., Inc., the District Court granted the employer’s motion for summary judgment on the grounds that the plaintiff could not establish a prima facie

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case under the EPA. More specifically, the Sharp court found that the plaintiff had failed to identify any male employees who performed substantially equal work for greater pay. Although the plaintiff identified a number of male employees who allegedly received more pay for performing substantially the same work, the court found that these individuals were not proper comparators for purposes of establishing a prima facie case.

As an alternative ground for granting the defendant’s summary judgment motion, the court held that the defendant had conclusively established that any alleged wage disparity was because of a factor other than sex. In that regard, the court determined that any wage differential between the plaintiff’s rate of pay and the compensation of her alleged comparators was the result of their respective levels of education and experience. Because the qualifications and background of the alleged comparators justified any alleged pay disparities, the court concluded that the defendant’s compensations decisions were based on neutral factors having nothing to do with gender.

Latham v. West Corporation, Case No. 08-2323, 2010 U.S. Dist. LEXIS 17089 (D. Az.Feb. 25, 2010)

In Latham v. West Corporation, a former employee who worked as a sales consultant filed an action against her employer alleging violations of the EPA, Title VII and the ADEA. The employee alleged that she was paid $0.81 per hour less than her less-experienced malecounterpart for the same job. Her employer contended that the pay disparity was based on a factor other than sex, namely that she was paid pursuant to a written company policy and standard formulas, as documented in various emails. The female employee had been demoted due to corporate restructuring, which reduced her wage rate, and after the demotion, was paid less than a less-experienced male employee who had been retained at a higher wage due to his employment with a company acquired by the female employee’s company. The court ultimately granted the employer’s motion for summary judgment because the employee presented no evidence that the employer’s legitimate explanation was pretext for discrimination.

Hicks v. Concorde Career College, 695 F.Supp. 2d 779 (W.D. Tenn. Feb. 26, 2010)

In Hicks v. Concorde Career College, an African-American male employee who worked as an admissions representative brought an action against his employer alleging that his female counterparts were hired at a higher rate of pay in violation of the EPA, that his white male counterparts were paid more than him in violation of Title VII and that he was subject to a racially hostile work environment, racial discrimination, and retaliation in violation of Title VII. The employer argued that the plaintiff could not make out a prima facie case under the EPA because he was not paid less than his female counterparts and because he was not performing equal work compared to his female counterparts.

To support its motion, the employer asserted that only those employees within the plaintiff’s particular classification were proper comparators, which the court rejected in favor of a broader group that included all female admissions representatives that performed substantially similar, but not identical, work to the plaintiff. Although the court looked at a larger number of female employees, it still found that the employer had based the plaintiff’s pay on factors other than sex. The employer produced evidence that the plaintiff was hired at a lower rate of pay than his female comparators because he only had nine months of verifiable employment history, while his

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female counterparts had significantly more verifiable employment experience. The plaintiff rebutted this showing by arguing that he had a much longer employment history but was unable to verify it because his former employers ceased operations. Ultimately, the court sided with the employer, finding that verifiable experience was a legitimate factor other than sex and granted the employer’s motion for summary judgment on the EPA claim.

Clayton v. Vanguard Car Rental, Case No. 09-0188, 2010 WL 5476787 (D.N.M. Dec. 9, 2010)

In Clayton v. Vanguard Car Rental, a female manager brought an action against her employer, arental car company, alleging age and gender discrimination under the ADEA, the EPA, the New Mexico Human Rights Act, and state law claims for breach of implied contract. The employer argued that any pay discrepancy between the plaintiff and her male replacement was based on factors other than sex, namely that it initially offered her replacement the same base salary but he declined and demanded an increase prior to accepting the general manager position. The court held that the employer had based the wage decision on a factor other than sex and granted the employer’s motion for summary judgment on the EPA claim.

Allender v. University of Portland, 689 F. Supp. 2d 1279 (D. Or. Feb. 9, 2010)

In Allender v. University of Portland, a highly published and scholarly professor who had entered the university as an adjunct and was promoted upward over her career to the associate professor position, brought suit claiming that two male associate professor colleagues were paid more than she.

The University utilized a four tier professor system--adjunct, assistant, associate, and full. The University did not utilize an articulated metric based on seniority within each tier to differentiate on salaries. Each tier, however, required different elements for promotion to its accompanying title. Once within a given tier, pay was largely arbitrary. The evidence showed that two male colleagues within the associate tier and within her area (economics) made more than she did. One colleague, a male, always made less.

On its motion for summary judgment, the University argued that Allender’s lower pay was the result of her being disciplined and of the male professors’ greater seniority. The court rejected both of the University’s arguments and denied the University’s motion. With respect to the University’s claim that Allender was paid less because she had been disciplined, the court found that the discipline defense only works for the times immediately following the discipline and it does not address the time beforehand or subsequent to the end of the discipline. The court found that the University could not rely on a “seniority” system to defend the pay disparity because ofthe fact that Allender’s colleagues were brought in at different pay levels and promoted at different rates showed that the pay disparity was subjective and not objectively based on how long they had been in the position.

Ford v. Goodwill Industries of Southwest Oklahoma and North Texas, Inc., Case No.09-578, 2010 U.S. Dist. LEXIS 53462 (W.D. Okla. June 1, 2010)

In Ford v. Goodwill Industries of Southwest Oklahoma and North Texas, Inc., Ford brought suit under the EPA and parallel state law (among other claims) arguing that Goodwill had violated

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the law by paying her an extra $1,000 per month during the 5 months she served as interim CEO (in addition to her regular director of marketing and retail operations salary) rather than the full salary that was later determined for the male hired to be the permanent CEO.

Goodwill filed a motion for summary judgment arguing that the disparity between the pay Ford received and the pay the permanent CEO received was justified by factors other than sex. The court agreed and granted the motion.

Rhoades v. Young Women’s Christian Association of Greater Pittsburg, Case No. 09-0261, 2010 U.S. Dist LEXIS 75426 (W.D. Pa. July 27, 2010)

In Rhoades v. Young Women’s Christian Association of Greater Pittsburg, a female accountant formerly employed by Women’s Christian Association of Greater Pittsburgh (“YWCA”), a not for profit, brought claims of discrimination and retaliatory discharge under the EPA.


Myers v. BP North America, Inc. and BP Products North America, Inc., Case No. 08-C-3619, 2010 U.S. Dist. LEXIS 23393 (N.D. Ill. Mar. 11, 2010)

In Myers v. BP North America, Inc. and BP Products North America, the plaintiff began her employment in 1996 in the UK and was transferred to the BP offices in Warrenville, Illinois in 2000, where she worked as crude oil trader for West African Crude Oil Bench (WAF Bench). The plaintiff was promoted to “book leader” of the WAF Bench in 2005, whereupon her compensation was comprised of a base salary and bonus linked to performance of the WAF Bench and her contributions. Upon learning in 2007 that her bonus for 2006 would be lower than she believed she earned, the plaintiff complained to upper management about her bonus calculation. The plaintiff then received a negative performance evaluation in April of 2007, in which her reaction to her 2006 bonus was characterized as “unprofessional” and “unacceptable” and criticized the plaintiff for showing her displeasure with her 2006 bonus with colleagues. Myers responded that she believed she was being singled out for harsher treatment with respect to the 2006 bonus (but did not cite gender). Defendant claimed it received complaints about her behavior from co-workers and, in July of 2007, advised Myers that her international assignment

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in the U.S. was being terminated and allowed her three months to repatriate to the UK. When the plaintiff did not repatriate, her employment was terminated. Myers brought suit claiming gender discrimination and retaliation under Title VII, violation of the EPA, breach of contract and fraudulent misrepresentation.

For her EPA claim, Myers alleged that she was paid less than male book leaders and crude traders in the organization, even though their positions required equal work and were performed with similar conditions. The court held that very significant disparities in performance must exist in order to render jobs which appear to have a “common core” unequal for EPA purposes on the basis of significant differences in financial performance. Moreover, the court held that summary judgment is not appropriate where both sides present cogent arguments supporting their contentions that the plaintiff’s position did or did not involve substantially equal skill, effort, and responsibility from the positions of the alleged comparables as traders because resolution of these competing arguments involves weighing of evidence, sifting of facts, and drawing of inferences, all of which make the inquiry (in this case at least) inappropriate for summary judgment. Accordingly, the court granted summary disposition on all counts except the EPA claims.

Nelson v. Chattahoochee Valley Hospital Society, Case No. 09-cv-700, 2010 WL 3039829 (M.D. Ala. Aug. 4, 2010)

In Nelson v. Chattahoochee Valley Hospital Society, Nelson, a registered nurse, took over her direct supervisor’s job duties when he left his position on a temporary military leave. She did not receive a pay raise for the first three months that she took over these job duties. When she did receive a pay raise, she earned 30% less than her direct supervisor did before he left his position. The defendant pointed to two factors that other than sex to justify the pay differential: the plaintiff’s taking over her supervisor’s job duties was temporary and the supervisor’s pay was higher because he was more senior and more experienced as a manager when he served in that position. The court denied summary judgment on this claim because there existed a genuine issue of material fact regarding whether the plaintiff’s position was temporary and whether she knew that it was temporary. Specifically, the court indicated that it could not simply rely on her job title. In addition, while the plaintiff may have known that her supervisor’s absence was temporary, it did not mean that she knew her own position was temporary and the plaintiff had been working in that position for over one month. Furthermore, there was not sufficient evidence in the record as to how the supervisor’s seniority and experience resulted in a higher salary.

Ralston v. Bell Aerospace Services, Inc., Case No. 09-cv-379, 2010 U.S. Dist. LEXIS 58529 (M.D. Ala. June 14, 2010)

In Ralston v. Bell Aerospace Services, the plaintiff worked as a production-control foreman and claimed that the other production-control foremen, who were all male, were paid more than she was. The defendant claimed that such a differential was warranted because of the other employees’ prior experience, seniority, and job performance, and the plaintiff did not rebut this evidence. One comparator served in the United States Marine Corps and managed 200 maintenance personnel, and another previously trained with the military in aviation-maintenance courses and had previous supervisory experience within the company. The plaintiff, on the other hand, was a team leader for a company conducting inventory at large stores and an assistant

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manager at a supermarket. One comparator had already worked as foreman for five years when the plaintiff was promoted, and she had a disciplinary history and sub-par performance reviews. The court found that the plaintiff’s personal argument with these reasons was insufficient to support a pretext argument.



With respect to the statute of limitations, the plaintiffs argued that the three-year limitations period for a willful violation. the only evidence presented by the plaintiffs was a news release issued by the U.S. Department of Labor in 1998 which touted an OFCCP compliance investigation and audit agreement between the OFCCP and the predecessor of Rolls-Royce at its Indianapolis facility. The court refused to consider the news release both because it was unauthenticated (and thus inadmissible) and because a lack of evidence regarding the predecessor's compensation policies rendered the release's relevance highly questionable. As the news release was the only evidence proffered by the plaintiffs to support a finding of willfulness,the court refused to consider the plaintiffs' claims from before the date two years before the complaint was filed.

As for the plaintiffs' timely claims, the court found that the plaintiffs were unable to show that they were performing equal work to that performed by comparably-employed men and that their EPA claim thus failed. Citing Sims-Fingers, 493 F.3d 768 (7th Cir. 2007), the court underscored the fact that the male employees to whom the plaintiffs pointed as comparators occupied distinctly different upper-level management positions within the company, with different job duties, and significantly longer tenures with the company. The court further noted that the plaintiffs' claims were undermined by their admission that each of the employees at their level was responsible for different products and parts and had varying numbers of employees answering to them at different times. In addition, the court found that evidence presented by the plaintiffs established that she had been paid more than one of her comparators and just $55 per year (less than 3/100 of a percent) lower than another, a difference that the court found to be trifling. As such, the court granted the defendant summary judgment on the plaintiffs’ EPA claims.

E. Pretext

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

Finch v. Xavier University, 689 F.Supp.2d 955 (S.D. Ohio Feb. 10, 2010)

In Finch v. Xavier University, the District Court for the Southern District of Ohio denied the parties’ cross-motions for summary judgment. The plaintiffs were two female, tenured

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professors in the Communications Arts Department of Xavier University, one of whom had been employed since 1988 and the other of whom had been employed since 1999. The Department was “factionalized and beset by infighting among its faculty,” and between 2004 and 2007 the plaintiffs were involved in various disputes with the Chair of the Department, a male. The plaintiffs believed that the disputes were rooted in the Chair’s discriminatory attitude toward women and filed discrimination complaints against him with Xavier. The Chair filed counter-charges of discrimination, and an ad hoc committee was formed to investigate. Xavier assertedthat the committee was formed to investigate the entire Department, but the plaintiffs asserted that it was formed only to investigate them in retaliation for their discrimination complaints. The ad hoc committee determined that the Chair had not discriminated against the plaintiffs, and further determined that the plaintiffs should be terminated for “gross dereliction in carrying out their ethical responsibilities to the University.” A Faculty Hearing Committee was then appointed which held evidentiary hearings on the charges against the plaintiffs and unanimously recommended that they be terminated. The recommendation and hearing transcripts were reviewed by Xavier’s President, who adopted the recommendation and notified the plaintiffs that they would be given one year terminal contracts and would both be dismissed at the conclusion of the academic year. At the time of their terminations, both plaintiffs were over 40 years of age, and each was replaced with a person under the age of 40. Both plaintiffs also earned a substantially lower salary than the Department Chair, even during a period when one of the two plaintiffs had acted as the Department Chair herself. Further, one of the plaintiffs had an annual salary that was only slightly higher than two male professors of the same rank, despite her substantially greater number of years of service at Xavier.

The plaintiffs filed suit against Xavier, the Board of Trustees, and its President alleging age and gender discrimination under Title VII and Title IX, retaliation under Title IX, breach of contract, and violations of the EPA. The plaintiffs sought summary judgment of their retaliation claims, and Xavier sought summary judgment on all of the plaintiffs’ claims.

Regarding the EPA claims, Xavier sought to justify the salary differential between the plaintiffs and the male Department Chair based on the fact that he had held his post-graduate degrees longer, had more teaching and/or professional experience, had been recruited from another University, and had more responsibilities as a result of being the Department Chair. However, the facts relied upon by Xavier were set forth in unsworn affidavits which could not be relied on by the court, and therefore the court found that Xavier could not show on its motion that the pay differential was due to factors other than sex. The court further found that there were issues of fact as to whether the reason(s) for the pay differential were pretextual, since the plaintiffs provided evidence that the difference between their salaries and the Department Chair’s salary was much greater than the amount of stipend/bonus usually awarded for acting as a Department Chair. As such, the court denied summary judgment.

Merchant v. Prince George’s County, Case No. 09-0256, 2010 U.S. Dist. LEXIS 11271 (D. Md. Feb. 9, 2010)

In Merchant v. Prince George’s County, a former Corrections Department Deputy Director filed suit under the EPA alleging that male co-workers were paid higher wages than she. All four male comparators held the same title as plaintiff and three performed work requiring equal skill, effort and responsibility. The court held that three of the four co-workers were appropriate comparators under the EPA.

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Although the plaintiff was able to make a prima facie showing under the EPA, the employer was able to establish a defense under one of the four statutory exceptions—specifically that a differential in pay was based on factors other than sex. The court stated that this statutory exception is broad in scope and allows for differences based on experience, training or ability. Here the employer provided evidence that the three male comparators all had significantly longer lengths of service with the county or in the area of corrections work generally than that of plaintiff. All three of the male comparators had over twenty years of experience when they were hired or appointed to the position. Additionally, the court noted that, in the several years that plaintiff worked for the defendant employer, her salary rose dramatically. Therefore, the court granted both the individual defendants’ and employer’s motions to dismiss, or alternatively, for summary judgment.

Rhoades v. Young Women’s Christian Association of Greater Pittsburg, Case No. 09-0261, 2010 U.S. Dist. LEXIS 75426 (W.D. Pa. July 27, 2010)

In Rhoades v. Young Women’s Christian Association of Greater Pittsburg, a female accountant formerly employed by Young Women’s Christian Association of Greater Pittsburgh (“YWCA”), a not for profit, brought claims of discrimination and retaliatory discharge under the EPA.


Latham v. West Corporation, Case No. CV-08-2323, 2010 U.S. Dist. LEXIS 17089 (D. Az. Feb. 25, 2010)

In Latham v. West Corporation, a former employee who worked as a sales consultant filed an action against her employer alleging violations under the EPA, Title VII and the ADEA. The employee alleged that she was paid $0.81 per hour less than her less-experienced male counterpart for the same job. Her employer contended that the pay disparity was based on a factor other than sex, namely that she was paid pursuant to a written company policy and standard formulas, as documented in various emails. The female employee had been demoted due to corporate restructuring, which reduced her wage rate, and after the demotion, was paid less than a less-experienced male employee who had been retained at a higher wage due to his employment with a company acquired by the female employee’s company. The court ultimately

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granted the employer’s motion for summary judgment because the employee presented no evidence that the employer’s legitimate explanation was pretext for discrimination.

Ralston v. Bell Aerospace Services, Inc., Case No. 09-cv-379, 2010 U.S. Dist. LEXIS 58529 (M.D. Ala. June 14, 2010)

In Ralston v. Bell Aerospace Services, the plaintiff worked as a production-control foreman and claimed that the other production-control foremen, who were all male, were paid more than she was. The defendant claimed that such a differential was warranted because of the other employees’ prior experience, seniority, and job performance, and the plaintiff did not rebut this evidence. One comparator served in the United States Marine Corps and managed 200 maintenance personnel, and another previously trained with the military in aviation-maintenance courses and had previous supervisory experience within the company. The plaintiff, on the other hand, was a team leader for a company conducting inventory at large stores and an assistant manager at a supermarket. One comparator had already worked as foreman for five years when the plaintiff was promoted, and she had a disciplinary history and sub-par performance reviews. The court found that the plaintiff’s personal argument with these reasons was insufficient to support a pretext argument.

VI. STATUTE OF LIMITATIONS

Boaz v. Federal Express Corporation, Case No. 2:09-cv-02232, 2010 WL 3834869 (W.D. Tenn. Sept. 24, 2010)

In Boaz v. Federal Express Corporation, the District Court for the Western District of Tennessee granted in part and denied in part the defendant’s motion for summary judgment, and denied the plaintiff’s cross-motion for partial summary judgment.

The plaintiff began work for Federal Express in its Customer Service department in 1997, pursuant to a written employment agreement which included both a six month statute of limitations for bringing complaints against the employer and a dispute resolution procedure. By 2003, plaintiff was employed as a Grade 7 Quality Assessor. Around that time, the defendant went through a reorganization which resulted in the elimination of a position held by a male employee who was a Grade 27 Project Management Advisor, and plaintiff commenced performing the duties that he had previously performed. The reorganization also resulted in a downward change to the classification of the new duties plaintiff had assumed from a Grade 27 to either a Grade 25 or Grade 23. In December of 2004 plaintiff was made a Grade 25 Quality Administrator, but was thereafter advised that the position had been misclassified and was made a Grade 23 Quality Assurance Systems Analyst. In June of 2008, the plaintiff’s Grade 23 position was eliminated and she was made a Grade 22 Associate Business System Support Analyst and ceased performing the duties she had taken over from the male employee in 2004, but with no reduction in her pay or benefits. Those duties were assumed by a female Grade 27 Project Management Advisor. Between 2004 and 2008 the plaintiff filed various internal complaints with the defendant regarding her pay and Grade classification, and the various changes made to her position, title, Grade, and pay during that time.

The plaintiff ultimately filed a lawsuit, alleging sex discrimination in violation of the FLSA, the EPA, Title VII, and state anti-discrimination law, and asserting wage claims under the FLSA.

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The court granted summary judgment to the defendant as to all of plaintiff’s claims except her Title VII disparate pay claim.

In connection with the EPA claim, the defendant argued that the claim was time-barred based on the six-month limitations period contained in the plaintiff’s employment agreement, which was valid and binding on the plaintiff. The court agreed, and found that the procedural rights of the FLSA (and thus, the EPA) could be abridged by agreement, and that the six month limitations period was reasonable. The court rejected the plaintiff’s argument that her use of the defendant’s internal complaint procedures tolled the limitations period, finding that internal procedures generally do not toll the limitations period and also that the plaintiff had not properly raised internal complaints regarding her EPA claim.

However, the court found that the plaintiff’s Title VII disparate pay claim was subject to the continuing violation provisions of the Lilly Ledbetter Fair Pay Act and had been timely filed. The court further found that genuine issues of material fact existed as to whether the plaintiff and the male employee whose duties she assumed were similarly situated. As a result, the defendant’s motion was denied as to the Title VII claim.

Summy-Long v. Pa. State Univ., Case No. 1:06-cv-1117, 2010 U.S. Dist. LEXIS 27953 (M.D. Pa. Mar. 24, 2010); 2010 U.S. Dist. LEXIS 116369 (M.D. Pa. Nov. 2, 2010)

In Summy-Long v. Pa. State Univ., a college professor filed suit under the EPA and claimed that her employer discriminated against her on the basis of pay for a period in excess of 20 years. Although the plaintiff claimed that she had been the victim of salary discrimination dating back to 1978, she did not initiate her lawsuit until June 2, 2006. Because the EPA requires that actions be commenced within two years – except for claims arising out of a willful violation which must be commenced within three years – the defendant moved for summary judgment and argued that the statute of limitations precluded the plaintiff from recovering under the EPA for any events occurring prior to June 2, 2003 or June 2, 2004. In response, the plaintiff claimed that the continuing violation theory should apply to her claims under the EPA.

Relying primarily on the Lily Ledbetter Fair Pay Act (“LLFPA”), the court held that the continuing violation theory did not apply to the plaintiff’s claims under the EPA. In reaching this conclusion, the court found that the statutory text of the LLFPA unambiguously required each discriminatory paycheck to be treated as a discrete act of discrimination rather than as one part of an overarching practice of discrimination. Accordingly, the plaintiff could not rely on the continuing violation doctrine to recover for paychecks received outside of the EPA’s limitations periods.

Despite rejecting the plaintiff’s argument that the continuing violation doctrine should apply to her claims under the EPA, the court found that the doctrine of equitable tolling was applicable. The court found it appropriate to invoke the doctrine of equitable tolling because the defendants had made statements suggesting that the salaries of female professors would be increased to remedy any gender-based wage disparities. Because the defendants’ alleged statements potentially delayed the commencement of the lawsuit by three months, the court held that the plaintiff’s potential recovery period should be extended by that amount of time.

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However, on the defendants’ motion for reconsideration, the court held that it had committed clear error by overlooking the defendants’ objection to the statements made by university administrators regarding longevity correction and considering those statements in its summary judgment ruling. Those statements were not in the record and also were the only evidence supporting the application of equitable tolling to the plaintiff’s claims under the EPA. Accordingly, the court held that the plaintiff’s recovery period was limited to those paychecks received three years prior to the plaintiff filing suit if the defendants committed a willful violation, or two years if not.

Shine v. TD Bank Fin. Group, Case No. 09-4377, 2010 U.S. Dist. LEXIS 69529, 26-30 (D.N.J. July 12, 2010)

In Shine v. TD Bank Fin. Group, the District Court granted the defendants’ motion to dismiss on the grounds that the plaintiff’s EPA claims were barred by the statute of limitations. Under the EPA, a claim must be brought within two years after the cause of action accrues unless the claim arises out of a willful violation, in which case a three year statute of limitations applies. The plaintiff’s complaint alleged that he was terminated on July 28, 2006, but he did not initiate his lawsuit until August 28, 2009 – more than three years after the date of his termination. Because the plaintiff’s termination date was the latest point at which he could possibly have suffered discrimination on the basis of pay, the court held his EPA claims were untimely even assuming that any pay differential was the result of a willful violation.

In response, the plaintiff contended that his EPA claim was timely because he had filed a charge of discrimination with the EEOC, which should have tolled the limitations period. The Shinecourt, however, rejected the plaintiff’s argument and held that the filing of a charge with the EEOC did not toll the statute of limitations period for claims under the EPA. In reaching this decision, the court first noted that the EPA, unlike Title VII, does not contain any administrative exhaustion requirement. Furthermore, the Supreme Court had determined in Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 465-66 (1975), that the filing of an EEOC complaint under Title VII did not toll a claim for discrimination brought under 42 U.S.C. § 1981 because that statutory claim did not require any kind of administrative exhaustion. Because the plaintiff was not required to file a charge of discrimination for his claim under the EPA, he could not rely on his EEOC charge to toll the EPA limitations period. As additional support for its decision, the court cited a number of lower court decisions which similarly concluded that a timely EEOC complaint did not toll the limitations period for an EPA claim. Accordingly, the court granted the defendants’ motion to dismiss the plaintiff’s EPA claims.


In Schultz v. Department of Workforce Development, the Western District of Wisconsin granted in part and stayed in part defendants’ motion for summary judgment. Schultz was a civil servant who rose through the ranks at her employer, an agency of the State of Wisconsin. Schultz brought a claim under the EPA for salary discrimination, naming four male comparators to make her prima facie case under the EPA. The court found that the plaintiff did not file her complaint in a timely fashion as to two of those four male comparators, as they left the defendant’s employ more than three years prior to the plaintiff filing her complaint, beyond the allowed statute of limitations. The court found that the other two male comparators had “duties that differed

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significantly in degree of effort and responsibility” and “additional responsibilities that Schultz did not perform” that justified their additional compensation. The court also found that market forces, education and experience further justified the pay discrepancy in the case of one of the two remaining comparators.

Vazquez v. Valley Hospital Medical Center, Case No. 2:09-CV-01811, 2010 WL 3860722 (D. Nev. Sept. 27, 2010)

In Vazquez v. Valley Hospital Medical Center, a female employee who worked as an imaging technician in the radiology department, filed suit more than two years and three months after she was discharged against her hospital employer alleging a violation of the EPA. The female employee alleged that a similarly situated, newly hired and less experienced male was making $3.42/hr more than she was at the time. The hospital contended that she was paid less based on her status as a per diem employee. The court ultimately dismissed the employee’s claim for failing to state a claim, as her claim was time-barred by the EPA’s two year statute of limitations.

Although the employee insisted that she sufficiently pled a willful violation entitling her to a three year statute of limitations period, the court found that the factual allegations in the her complaint did not show that her employer knew or showed reckless disregard that its conduct violated the EPA. The employee alleged that her manager’s inability to explain the employee rating system used to determine her pay and her manger’s agreement to advocate on her behalf was insufficient evidence that the violation was willful. The plaintiff also argued that another manager’s statement, that she did not believe the discharged employee’s less experienced male counterpart should make more money than her, and the hospital’s COO’s statement that “something needed to be done” about the pay disparity demonstrated willfulness. However, the court found that those “allegations of sympathy” did not constitute an inference of reckless disregard or willfulness on behalf of the employer, and the two year statute of limitations applied, making the plaintiff’s EPA claim time-barred.



With respect to the statute of limitations, the plaintiffs argued that the three-year limitations period for a willful violation. the only evidence presented by the plaintiffs was a news release issued by the U.S. Department of Labor in 1998 which touted an OFCCP compliance investigation and audit agreement between the OFCCP and the predecessor of Rolls-Royce at its Indianapolis facility. The court refused to consider the news release both because it was unauthenticated (and thus inadmissible) and because a lack of evidence regarding the predecessor's compensation policies rendered the release's relevance highly questionable. As the news release was the only evidence proffered by the plaintiffs to support a finding of willfulness, the court refused to consider the plaintiffs' claims from before the date two years before the complaint was filed.

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As for the plaintiffs' timely claims, the court found that the plaintiffs were unable to show that they were performing equal work to that performed by comparably-employed men and that their EPA claim thus failed. Citing Sims-Fingers, 493 F.3d 768 (7th Cir. 2007), the court underscored the fact that the male employees to whom the plaintiffs pointed as comparators occupied distinctly different upper-level management positions within the company, with different job duties, and significantly longer tenures with the company. The court further noted that the plaintiffs' claims were undermined by their admission that each of the employees at their level was responsible for different products and parts and had varying numbers of employees answering to them at different times. In addition, the court found that evidence presented by the plaintiffs established that she had been paid more than one of her comparators and just $55 per year (less than 3/100 of a percent) lower than another, a difference that the court found to be trifling. As such, the court granted the defendant summary judgment on the plaintiffs’ EPA claims.

VII. DAMAGES

Ventura v. Bebo Foods, Case No. 08-621, 2010 WL 4910887 (D.D.C. Dec. 3, 2010)

In Ventura v. Bebo Foods, a group of former employees who worked as wait staff and bussers for a restaurant filed a collective and class action alleging violations of wage payment and overtime obligations under the FLSA, the EPA, and the District of Columbia Wage Payment and Collection Law. The court granted the employees’ motion for summary judgment on their wage payment and overtime claims, including the EPA claim made by a female employee. The courtalso found that employer did not maintain proper payroll records pursuant to 29 U.S.C. § 211(c)and that the employees’ estimates of the hours they worked were reliable and supported by sufficient evidence.

In calculating damages, the court held that damages for unpaid minimum wage and overtime wages for an EPA violation must be calculated differently from the other tipped employees within the class who did not allege an EPA claim. One of the female class members was paid only $3.35 per hour while her male counterpart was paid $8.00 per hour, even though she performed the same amount and type of work as her male counterpart. The court found that the female employee was entitled to the difference between what she was paid and what her male colleague was paid as damages under the EPA. The court held that these damages subsumed her minimum wage and overtime damages under 29 U.S.C.A. § 206(d)(3), as these damages were greater than the rate she would otherwise be able to recover in unpaid minimum wages. Likewise, the court used the discrepancy between the female employee’s pay and her male counterpart’s pay to determine her unpaid overtime wages, amounting to thirty hours per week for fifty-nine weeks. The court also found that the employee was entitled to liquidated damages under the FLSA, EPA, and state law.

VIII. ADMINISTRATIVE ACTION

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IX. COLLECTIVE ACTION

Rollins v. Alabama Community College, Case No. 2:09-CV-636, 2010 WL 4269133 (M.D. Ala. Oct. 25, 2010)

In Rollins v. Alabama Community College, the plaintiffs were female employees of a two-year state college paid within a particular salary class, but not performing similar work. The U.S. District Court for the Middle District of Alabama denied the plaintiffs’ motion for conditional certification of their EPA claim on the basis that the plaintiffs failed to present information that showed the persons they sought to be included in the collective action were similarly situated. The court reasoned that in order for there to exist a collective action under the EPA, the plaintiffs must present evidence of commonality of claims. The court noted that the plaintiffs’ evidence fell short of a necessary showing that the group of similarly situated employees was all female. Further, the court found that expert evidence proffered by the plaintiffs did not show the responsibilities of the employees who the plaintiffs claim are similarly situated and performing jobs that require “equal skill, effort and responsibility.” Therefore, the court could not determine if the jobs for which the EPA claim would apply are “substantially equal” to merit a claim under the EPA.

X. RETALIATION

Rizzo v. The Kraus Organization, Case No. 10-CV-272, 2010 U.S. Dist. LEXIS 57615 (E.D.N.Y. May 25, 2010)

In Rizzo v. The Kraus Organization, the Eastern District of New York granted in part and denied in part defendant’s 12(b)(6) motion to dismiss. Rizzo, a female lawyer who worked as in-house counsel for the defendants, a federally-subsidized residential housing developer, claimed she was paid less than male comparators and had to leave her job of eighteen years due to her employer’s retaliatory treatment after she complained internally of gender discrimination.

The defendants moved to dismiss Rizzo’s retaliation claim arguing that even if she were fired as a result of retaliation for her internal complaint, she could not state a retaliation claim because only a complaint filed with an external authority constituted protected activity under the EPA §215(a)(3). The court noted that the federal courts of appeals are split on the meaning of the phrase “file any complaint” and the Second Circuit has held that “[t]he plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” Lambert v. Genesee Hosp., 10 F.3d 46, 55 (1993). The court found that as Rizzo had complained to her employer, and not to an external authority, she could not state a claim for retaliation under the EPA. As such, the court granted that part of the defendant’s motion to dismiss.

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XI. RELATED STATE LAW CLAIMS

XII. PROCEDURAL CONSIDERATIONS, MISC.

A. Amount in Controversy

B. Pleading

Emmons v. The City University of New York, Case No. 09-CV-537, 2010 U.S. Dist. LEXIS 54140 (E.D.N.Y. June 1, 2010)

In Emmons v. The City University of New York, the District Court for the Eastern District of New York granted in part and denied in part the defendants’ motion to dismiss under F.R.C.P. 12(b)(1) and (6).

In 2001, the plaintiff was hired by the Research Foundation of the City University of New York to work at Medgar Evers College on a part-time basis, and later became a full-time instructor in the college’s “Immersion” program in 2005 at a fixed annual salary. The plaintiff alleged that after starting in her new position, she complained to the college that she believed she was being discriminated against in her salary due to her sex, and thereafter was threatened with termination, subjected to intense monitoring, verbal abuse and harassment, and ultimately had a part-time teaching position taken away. In 2006 the plaintiff was placed on a temporary disability leave. While at home, she was terminated from her full-time position because it was no longer being funded. Almost immediately thereafter, she was offered a part-time position in the Adult and Continuing Education Program. However, that offer was thereafter withdrawn, allegedly due to animus toward the plaintiff. The plaintiff proceeded to file additional complaints with the college regarding her belief that she was discriminated against and wrongfully terminated. After an investigation of these complaints, she was offered a new position at the Young Adult Borough Program at a higher salary and promised a raise after her first performance evaluation. While in this position, the plaintiff claimed that she continued to be subjected to discrimination in the form of disparate treatment, and was also forced to work on Friday nights and Saturdays despite advising the college prior to accepting the position that she was unable to work during those periods due to her religious practices. Nor was plaintiff ever given the promised raise, despite positive evaluations. Instead, her salary was later reduced. Meanwhile, the plaintiff alleged that a male co-worker with less experience and credentials was paid a higher salary and received two promotions. In early 2008, the plaintiff was granted FMLA leave due to injuries suffered in an automobile accident. Soon after her return to work, the plaintiff was informed that she was going to be transferred to a new job at the Progressive Youth Empowerment program at Beacon Center. However, several weeks after being told of the transfer, she was advised that the new position had been eliminated and that her employment was again being terminated due to lack of funds. Again the plaintiff filed complaints with the college regarding her termination, and was advised that another investigation was being done and she would be contacted once it was completed. However, the plaintiff was never contacted again regarding her complaints or the investigation. The plaintiff proceeded to bring suit based on sex, disability, race, color, religion, and national origin in violation of a wide variety of federal and state statutes and state common

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law, as well as retaliation for complaining of the discrimination. The defendants moved to dismiss.

The plaintiff’s EPA claim was dismissed with leave to amend. The court found that the Complaint’s allegations in support of this claim were insufficient. As to the assertion that she received unequal pay in 2005, the court found that it lacked any support in the pleading other than the plaintiff’s own speculation. As to her allegation that in 2006 a male co-worker received more compensation, the court found that the plaintiff failed to allege that their positions were substantially equal in skill, effort, and/or responsibility.

Ezekiel v. Tift County School District, Case No. 7:08-CV-127, 2010 U.S. Dist. LEXIS 8230 (M.D. Ga. Feb. 1, 2010)

In Ezekiel v. Tift County School District, the District Court for the Middle District of Georgia granted the defendants’ motion for judgment on the Pleadings as to the plaintiff’s unequal pay claims. The plaintiff, an African-American female, had been employed by the Tift County School District since 1982, holding various positions during her tenure with the District and ultimately becoming the principal of the Len Lastinger Primary School in 1999. In 2007, when the plaintiff was 47, the TCSD sought to fill the newly created position of Director of Human Resources, and plaintiff applied for the position. However, a 50 year old Caucasian male was hired to fill the position rather than the plaintiff. The plaintiff filed a grievance with the TCSD regarding this decision, but the decision was upheld.

The plaintiff then filed a complaint with the EEOC alleging that TCSD’s failure to select her for the Director of Human Resources position was discriminatory and retaliatory, and that a “less qualified male” was selected instead. She thereafter proceeded to sue TCSD and the district’s Superintendent alleging discrimination on the basis of race, sex and age in failing to promote her to the Director of Human Resources position and in paying her less than males in the TCSD because of her race and sex.

In connection with the EPA claims, the court found that the plaintiff failed to meet the minimum pleading standard set forth in F.R.C.P. 8(a)(2), in that the allegations in the Complaint consisted of conclusory statements that did not provide any factual basis for the claim. For example, there were no facts pled that would allow the court to determine when the alleged violation(s) occurred. There were no facts regarding the specifics of any pay disparity. There were no facts regarding the nature of the positions held by the comparators to allow a determination of whether they performed jobs requiring equal skill, effort or responsibility under similar working conditions. The plaintiff’s allegation that she was paid less than males with less experience or lower qualifications was found to be irrelevant, since a prima facie case of an EPA violation is made by comparing the jobs held by the different employees, not by comparing their skills and qualifications.

Adams v. Northstar Location Services, LLC, Case No. 09-CV-1063, 2010 WL 3911415 (W.D.N.Y. Oct. 5, 2010)

In Adams v. Northstar Location Services, LLC, the plaintiff filed an EPA claim against her former employer and Northstar moved to dismiss for failure to state a claim upon which relief could be granted. Though the plaintiff alleged that she was paid less than a male employee, she

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did not allege that she and the male comparator performed "equal work on jobs requiring equal skill, effort, and responsibility" nor did she allege that their respective jobs "are performed under similar working conditions." In addition to noting the foregoing, the court also noted that the plaintiff failed to describe her job responsibilities versus those of the male comparator. Though the plaintiff claimed that she had more tenure, experience, and responsibilities with Northstar than that of her male comparator. The court held that the plaintiff failed to allege any facts showing that she and the male comparator "performed substantially equal work," and thus, she failed to state a claim upon which relief could be granted under the EPA.

Allen v. Magic Media, Inc., Case No. 09-4139, 2010 WL 4739748 (D. Kan. Nov. 16, 2010)

In Allen v. Magic Media, Inc., the plaintiff filed various employment discrimination claims against her former employer. Among those claims, the plaintiff purported to assert a Title VII gender discrimination claim on grounds of wage disparity, as well as an EPA claim. Magic Media filed a motion for summary judgment on the plaintiff's Title VII claim on grounds that she failed to exhaust her administrative remedies with the EEOC. Specifically, Magic Media asserted that though the EEOC charge contained “specific examples” of alleged “differential treatment,” it did not contain any “hint at wage discrimination.” The court agreed with Magic Media, concluding that the plaintiff failed to “argue in her EEOC charge that any part of this discriminatory treatment included a disparity in her salary compared to similarly situated male associates” such that her Title VII claim was dismissed as a result of her failure to fulfill the administrative prerequisites for a Title VII lawsuit. Because the EPA contains no administrative exhaustion requirement, however, the court, in considering the plaintiff's purported EPA claim, considered the four corners of her Complaint. The court concluded that though her Complaint asserted that she was subjected to disparate terms and conditions of employment, including “less pay,” she did not “allude to the Equal Pay Act, or cite its statute, or make any other reference to pay.” Accordingly, the court concluded that the reference to “less pay” was “insufficient to state a separate claim upon which relief can be granted under the EPA.”

McCann v. Veterans Haven, Case No. 08-5031, 2010 WL 4103669 (D.N.J. Oct. 18, 2010)

In McCann v. Veterans Haven, the court dismissed the pro se plaintiff’s amended complaint for failure to state a claim. The plaintiff filed a motion for reconsideration of the court’s dismissal of the amended complaint or, in the alternative, leave to file a new amended complaint alleging claims under the EPA. The court denied the plaintiff’s motion. The court held that denial of reconsideration was proper because the plaintiff failed to show that dispositive factual matters or controlling decisions of law were brought to the court’s attention but not considered. The court noted that plaintiff did not point to any new evidence of change in controlling law. Additionally, under the 12(b)(6) standard, the complaint could not survive since the plaintiff did not include any allegations in the complaint that employees of the opposite sex were being paid more for doing substantially similar work.

The court also denied the plaintiff’s request for relief to file a second amended complaint since an amendment would be futile. In plaintiff’s proposed second amended complaint, he stated that his employer “paid him $9.00 per hour which was less than female workers, $11.00 per hour, who were probationary, similar to plaintiff.” The court held this conclusory statement was not

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sufficient to meet the standard of legal sufficiency under Rule 12(b) (6). Even the proposed second amended complaint did not provide any facts sufficient to demonstrate that his work was of “substantially equal skill, effort and responsibility” or that he worked under “similar working conditions.”


In Schultz v. Department of Workforce Development, the Western District of Wisconsin granted in part and stayed in part defendants’ motion for summary judgment. Schultz was a civil servant who rose through the ranks at her employer, an agency of the State of Wisconsin. Schultz brought a claim under the EPA for salary discrimination, naming four male comparators to make her prima facie case under the EPA. The court found that the plaintiff did not file her complaint in a timely fashion as to two of those four male comparators, as they left the defendant’s employ more than three years prior to the plaintiff filing her complaint, beyond the allowed statute of limitations. The court found that the other two male comparators had “duties that differed significantly in degree of effort and responsibility” and “additional responsibilities that Schultz did not perform” that justified their additional compensation. The court also found that market forces, education and experience further justified the pay discrepancy in the case of one of the two remaining comparators.

Despite the defendant’s successful statute of limitations defense and showing of differences in all of plaintiff’s named comparators, the court stayed in part the defendant’s motion for summary judgment and granted plaintiff’s motion to amend her amended complaint to name another male comparator not previously named in her complaint or amended complaint. Schultz first learned of this male comparator when he was deposed as part of the plaintiff’s instant case. The court weighed the prejudices of allowing the plaintiff to amend her complaint a second time to name this new male comparator. The court noted that while plaintiff should have identified the proper male comparator in her complaint, the defendants had notice of plaintiff’s interest in this male comparator when plaintiff noticed his deposition and therefore defendant had ample time to have supplemented their motion for summary judgment on any claims brought against it in relation to this new male comparator. The defendants unsuccessfully argued that plaintiff’s assertion to amend her complaint was “futile”, noting that this male comparator had a starting salary equal to his pay at a similar position for the State of North Carolina, but giving no further reasons for paying him more than her when he started in the same position. The court noted, after a review of cases on point, that it is “debatable whether an employee’s salary at his prior job will alwaysbe sufficient - no matter what other circumstances exist - to defeat an Equal Pay Act claim by a lesser-paid member of the opposite sex who performs the same work.” The court determined that, rather than waste judicial resources, it would allow plaintiff to amend her complaint to include this new male comparator and also allow the defendant time to supplement the evidence in favor of summary judgment as it concerns this male comparator.

Vazquez v. Valley Hospital Medical Center, Case No. 2:09-CV-01811, 2010 WL 3860722 (D. Nev. Sept. 27, 2010)

In Vazquez v. Valley Hospital Medical Center, a female employee who worked as an imaging technician in the radiology department, filed suit more than two years and three months after she was discharged against her hospital employer alleging a violation of the EPA. The female

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employee alleged that a similarly situated, newly hired and less experienced male was making $3.42/hr more than she was at the time. The hospital contended that she was paid less based on her status as a per diem employee. The court ultimately dismissed the employee’s claim for failing to state a claim, as her claim was time-barred by the EPA’s two year statute of limitations.

Although the employee insisted that she sufficiently pled a willful violation entitling her to a three year statute of limitations period, the court found that the factual allegations in the her complaint did not show that her employer knew or showed reckless disregard that its conduct violated the EPA. The employee alleged that her manager’s inability to explain the employee rating system used to determine her pay and her manger’s agreement to advocate on her behalf was insufficient evidence that the violation was willful. The plaintiff also argued that another manager’s statement, that she did not believe the discharged employee’s less experienced male counterpart should make more money than her, and the hospital’s COO’s statement that “something needed to be done” about the pay disparity demonstrated willfulness. However, the court found that those “allegations of sympathy” did not constitute an inference of reckless disregard or willfulness on behalf of the employer, and the two year statute of limitations applied, making the plaintiff’s EPA claim time-barred.

Henderson v. Wal-Mart Stores Texas, LLC, Case No. H-10-0317, 2010 U.S. Dist. LEXIS 36889 (S.D. Tex. Apr. 14, 2010)

In Henderson v. Wal-Mart Stores Texas, LLC, a female employee proceeding pro se brought an action against her employer alleging that she was terminated from Wal-Mart based on her age, national origin, race, disability and in retaliation for her complaints about pay and assignments in violation of Title VII, the ADA and the ADEA and that she was paid less than her male counterparts in violation of the EPA. Although the employee’s claims under Title VII, the ADA and the ADEA were barred for failing to exhaust her administrative remedies, the court found that the EPA claim was not subject to the administrative exhaustion requirement.

Wal-Mart brought a motion to dismiss the EPA claim, arguing that the employee failed to plead facts adequate to support every essential element of an EPA claim. The employee, a stocker, implicitly alleged that a male employee doing the same work she was doing would have received a $.50 per hour increase in pay. The court, applying a broad reading of the pro se complaint, found that the employee had met her initial burden in alleging that she was paid less than a similarly situated male performing the same work and her EPA claim could proceed.

Gibson v. American Apartment Management Company, Case No. 3:10-CV-253, 2010 WL 3656038 (E.D. Tenn. Sept. 14, 2010)

In Gibson v. American Apartment Management Company, an employee hired to do Human Resources work brought suit under the EPA claiming that “[e]very other employee in the company” was paid overtime except for her. The defendant filed a motion to dismiss for failure to state a claim.

The court agreed with the defendant and dismissed the EPA claim with prejudice. In reaching its determination, the court found that the plaintiff had failed to allege any facts from which it could infer that “any male employees were paid more than plaintiff for work equal to that of the plaintiff” and that “[a]t best, plaintiff alleges that her work was equal to that of the former

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secretary/treasurer, a female, whole job responsibilities she took over.” Because the only employee she pointed to as a comparator was also female, the plaintiff could not state a claim under the EPA.

C. Evidence

Finch v. Xavier University, 689 F.Supp.2d 955 (S.D. Ohio Feb. 10, 2010)

In Finch v. Xavier University, the District Court for the Southern District of Ohio denied the parties’ cross-motions for summary judgment. The plaintiffs were two female, tenured professors in the Communications Arts Department of Xavier University, one of whom had been employed since 1988 and the other of whom had been employed since 1999. The Department was “factionalized and beset by infighting among its faculty,” and between 2004 and 2007 the plaintiffs were involved in various disputes with the Chair of the Department, a male. The plaintiffs believed that the disputes were rooted in the Chair’s discriminatory attitude toward women and filed discrimination complaints against him with Xavier. The Chair filed counter-charges of discrimination, and an ad hoc committee was formed to investigate. Xavier asserted that the committee was formed to investigate the entire Department, but the plaintiffs asserted that it was formed only to investigate them in retaliation for their discrimination complaints. The ad hoc committee determined that the Chair had not discriminated against the plaintiffs, and further determined that the plaintiffs should be terminated for “gross dereliction in carrying out their ethical responsibilities to the University.” A Faculty Hearing Committee was then appointed which held evidentiary hearings on the charges against the plaintiffs and unanimously recommended that they be terminated. The recommendation and hearing transcripts were reviewed by Xavier’s President, who adopted the recommendation and notified the plaintiffs that they would be given one year terminal contracts and would both be dismissed at the conclusion of the academic year. At the time of their terminations, both plaintiffs were over 40 years of age, and each was replaced with a person under the age of 40. Both plaintiffs also earned a substantially lower salary than the Department Chair, even during a period when one of the two plaintiffs had acted as the Department Chair herself. Further, one of the plaintiffs had an annual salary that was only slightly higher than two male professors of the same rank, despite her substantially greater number of years of service at Xavier.

Plaintiffs filed suit against Xavier, the Board of Trustees, and its President alleging age and gender discrimination under Title VII and Title IX, retaliation under Title IX, breach of contract, and violations of the EPA. The plaintiffs sought summary judgment of their retaliation claims, and Xavier sought summary judgment on all of the plaintiffs’ claims.

Regarding the EPA claims, Xavier sought to justify the salary differential between the plaintiffs and the male Department Chair based on the fact that he had held his post-graduate degrees longer, had more teaching and/or professional experience, had been recruited from another University, and had more responsibilities as a result of being the Department Chair. However, the facts relied upon by Xavier were set forth in unsworn affidavits which could not be relied on by the court, and therefore the court found that Xavier could not show on its motion that the pay differential was due to factors other than sex. The court further found that there were issues of fact as to whether the reason(s) for the pay differential were pretextual, since the plaintiffs provided evidence that the difference between their salaries and the Department Chair’s salary

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was much greater than the amount of stipend/bonus usually awarded for acting as a Department Chair. As such, the court denied summary judgment.

Bauer v. University of Missouri, Case No. 07-04044-CV, 2010 WL 3516196 (W.D. Mo. Aug. 31, 2010)

In Bauer v. University of Missouri, plaintiff Susan Bauer, an advanced practice nurse who worked for the University of Missouri, filed an EPA claim against the University of Missouri alleging that she was paid less for performing the same job than a male advanced practice nurse, Benjamin Francisco. The University filed a motion in limine to prohibit the plaintiff from introducing any evidence at trial regarding the job duties, responsibilities, working conditions and salary of Harlan Scott Schmidt, a male nurse who was not an advanced practice nurse. The University claimed that the plaintiff’s complaint was solely based on the alleged wage disparity between she and Francisco and further, because Schmidt was not an advanced practice nurse, evidence considering the terms and conditions of his employment were irrelevant and immaterial under Federal Rule of Evidence 402. The University also argued that any probative value of the evidence concerning Schmidt’s salary, etc. would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time, in violation of Federal Rule of Evidence 403. In response, the plaintiff claimed that evidence regarding Schmidt was being offered to show that the University paid a lesser-skilled male nurse what it paid a skilled and experienced advanced practice nurse, rebutting the University’s affirmative defense that Francisco’s pay was based on a factor other than sex. The court denied the University’s motion, though it agreed to reconsider the motion if the University could demonstrate prior to trial why the evidence would violate Rules 401 or 403.

The plaintiff also filed a motion in limine seeking to exclude Francisco’s own testimony as to the reason why he was paid the salary he received, on grounds that the evidence was “wholly speculative.” The plaintiff claimed that there was no testimony or evidence from Francisco or any other witness regarding the “actual reason” why Francisco’s salary level was set as it was. The University responded that it was not required “to provide ‘the testimony or evidence’ plaintiff references prior to trial, and its “failure to do that which it is not required to do should not prevent it from producing that evidence at trial.” The court agreed with the University, subject to reconsideration prior to trial should the plaintiff again raise the issue.

Similarly, the plaintiff filed a motion in limine seeking to exclude any testimony by Francisco or witness Karen Touzeau that the amount of Francisco’s salary was based on his hours worked, travel away from Columbia, or him being a principal investigator on a grant. Though the plaintiff acknowledged that Francisco testified during his deposition that part of his salary was paid from grant funds, he normally worked 8 to 5 Mondays through Fridays, and that he traveled away from Columbia, he did not testify that those factors were the reason for his salary level. The plaintiff additionally argued that Touzeau testified that those factors “may” have been considered in setting Francisco’s salary, but she had no objective criteria upon which to base that opinion and could not offer any opinion as to whether those factors actually were considered when setting Francisco’s pay. The plaintiff claimed that such evidence, therefore, should be excluded pursuant to Rule 403, due to the risk of unfair prejudice and because the evidence was speculative. The University argued that it had no burden to provide the plaintiff prior to trial with any evidence as to whether Francisco’s salary was based upon one or more of these factors.

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The court agreed with the University, subject to reconsideration prior to trial should the plaintiff again raise the issue.


In Leatherwood v. Anna’s Linens Co., the plaintiff alleged that a male co-worker holding the same position of store keyholder was paid one dollar more per hour in violation of the EPA. The District Court granted the defendant’s motion for summary judgment, finding that the plaintiff was unable to establish a prima facie case under the EPA because plaintiff failed to contradict the defendant’s contention that 12 female keyholders were paid the same or higher hourly rate than their male co-workers. The plaintiff appealed the District Court’s ruling. In an unpublished opinion, the Eleventh Circuit disagreed with the District Court’s holding but upheld the summary judgment ruling on other grounds.

The Eleventh Circuit held that the only evidence offered by the defendant as proof regarding the other female keyholder’s wages was a handwritten statement from its human resources director. The court noted that, although the statement declared “under penalty of perjury that the foregoing is true and correct,” the statement was not notarized. The court held that the declaration as given may not meet the requirements of 28 U.S.C. 1746, regarding unsworn declarations under penalty of perjury. Since it was unclear whether the defendant could rely on the statement in support of its motion for summary judgment, and the defendant did not dispute the fact that plaintiff was paid less that her male counterpart; the Eleventh Circuit held that plaintiff in fact established a prima facie case under the EPA. Nonetheless, the court found that the company had established that the wage differential was based on a factor other than sex and upheld the grant of summary judgment.

D. Waiver and Release

E. Estoppel and Res Judicata

Righter v. Zuccarelli, Case No. 09-C-07563, 2010 U.S. Dist. LEXIS 49156 (N.D. Ill.May 17, 2010)

In Righter v. Zuccarelli, the court denied the defendants’ 12(b)(6) motion to dismiss the EPA claim of a former police sergeant employed by South Suburban College and its Police Department on equitable estoppel grounds. The court reasoned that, in light of the facts most favorable to plaintiff, she could not have known when her claims had accrued under the EPA due to steps the defendants took to prevent her from knowing. This included the defendants telling officers in the department to refrain from discussing their compensation with her, repeatedly praising her and assuring her that her requests for a change in shifts (to accommodate a medical condition causing her difficulty in working at night) would be accommodated. The defendants argued that Righter’s claim accrued in 1995 when she heard a rumor that she was paid less than male sergeants to do the same work and she addressed that rumor in seeking from the defendants at that time an answer to if this rumor were true. The court found that the defendants’ acts, specifically the Police Director’s insistence that the rumor was not true when asked by Righter in 1995, and the several unanswered requests by Righter to the department to ensure her compensation was similar to her male comparators, were sufficient to deny the defendants’

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motion to dismiss on statute of limitations grounds under a theory of equitable estoppel. The court found that Righter’s evidence suggesting she was made aware of the inequitable pay again in 2009 was sufficient to pursue a claim under the EPA within the statutory timeframe.

F. Burden of Proof

G. Discovery

REPORT OF THE EQUAL PAY ACT … ASSOCIATES, LTD. P.O. Box 909 Little Rock, Arkansas 72203...

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