Developments in Equal Pay Litigation

10 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP The Court also rejected plaintiffs’ reliance on an analysis of what they might have been paid if they had been compensated under the same terms as the men players’ CBA. “This approach – merely comparing what each team would have made under the other team's CBA – is untenable in this case because it ignores the reality that the [men players] and [women players] bargained for different agreements which reflect different preferences, and that the [women players] explicitly rejected the terms they now seek to retroactively impose on themselves. ” 54 The court found that the history of negotiations between the women players and their employer showed that they had rejected an offer to be paid under similar terms as the men’s team and instead opted for different terms that provided benefits to the women players that were difficult to value: “One of the defining features of the [women players’] CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the [male players’] CBA, under which players are only compensated if they are called into camp to play and then participate in a match. It is difficult to attach a dollar value to this ‘insurance’ benefit, and neither party attempts to do so here.” 55 Accordingly, the court found that there was no genuine issue of material fact to show that the male players were in fact paid more than the women players and granted summary judgment in favor of the employer on the women players’ EPA claim. 56 Similarly, in Sempowich v. Tactile Systems Technology, Inc. , 57 a regional sales manager for a medical device manufacturer alleged that she was paid less than a male comparator when comparing base salaries. The court held that she failed to establish a prima facie case of pay discrimination because she was actually paid more than her comparator when comparing total compensation, meaning base salary plus commissions. 58 The court applied the EEOC’s definition of “wages,” which includes all payments made to an employee whether provided as base salary, bonus, or any other form of compensation. 59 Plaintiff argued that including her incentive compensation would frustrate the purpose of the EPA because it would require “harder work for commissioned employees with lower base salaries to achieve equal pay.” 60 The court rejected that argument, holding that the EEOC’s definition of wages comports with the text of the EPA and Supreme Court and Fourth Circuit precedent. 61 A plaintiff’s reliance on less clear-cut bases of compensation can create problems of proof that may result in dismissal. For example, in Williamson v. Digital Risk, LLC , 62 the court refused to dismiss some discrimination claims, including a claim under Title VII, because plaintiff had introduced direct evidence of intentional discrimination. 63 But with respect to her EPA claim, the court held that the plaintiff had failed to produce evidence that male employees were entitled to a larger percentage of commissions than she received. 64 Similarly, in Wentzel v. Williams Scotsman Inc. , 65 although the court held that the plaintiff had established that the work of two Account Executives was “substantially equal,” summary judgment was granted to the employer because plaintiff actually earned more money than her male comparator. 66 The plaintiff argued that she had to work significantly harder than her male comparator in a manner that was 54 Id. at 655. 55 Id. 56 Id. at 656. 57 Sempowich v. Tactile Sys. Tech., Inc. , No. 5:18-CV-488-D, 2020 WL 6265076 (E.D.N.C. Oct. 23, 2020). 58 Id. at *23. 59 Id. 60 Id. 61 Id. at *23-24. 62 Williamson v. Digital Risk, LLC , No. 6:18-CV-767-Orl-31EJK, 2020 WL 434954 (M.D. Fla. Jan. 28, 2020). In that case, a female senior operations manager alleged a variety of intentional discrimination claims, including sex harassment, along with a wage discrimination claim under the EPA. 63 Id. at *4. “according to the Plaintiff’s sworn declaration, [Plaintiff’s supervisor] directly told her that he was taking away her accounts because leadership believed ‘she was making too much money as a female.’” Id. 64 Id. at *5. The court concluded: “Plaintiff has not argued, much less shown, that the male employees were in fact paid more than her.” Id. 65 Wentzel v. Williams Scotsman Inc. , No. 18-CV-02101-PHX-SMB, 2020 WL 1158547 (D. Ariz. Mar. 10, 2020). The plaintiff was the only female Account Executive employed at a modular office space provider. Her comparator was the only other Account Executive working at the same office, who was male. 66 Id. at *3-4.