Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 17 because “[t]here is evidence that she performed the same duties and required the same substantive level of supervision as the CA IIIs in the same department where [comparators] worked, and she handled a case load heavier than all CAs in the department.” 120 However, in Badgerow v. REJ Properties, Inc. , 121 the Fifth Circuit held that plaintiff had failed to point to evidence that her job circumstances were “nearly identical” to her proffered comparators . 122 “Because [plaintiff] points us to no evidence of how her job duties compared to the senior AFAs’ initial job duties, she cannot use the alleged disparity between her salary and the senior AFAs’ starting salaries to further her wage discrimination claim. ” 123 Similarly, in Wilson v. Wilkie , 124 the District Court for the Southern District of Ohio found that a Recreation Assistant paid at a GS-5 level of the General Schedule of federal government salaries failed to show that he performed substantially equal work to employees serving in the same position but at the GS-6 level: “Plaintiff's engaging veterans in informal games and conversation is not substantially equal to the structured therapies provided by the GS-6s, who used their prior experience as nursing assistants to monitor veterans’ cognitive and physical limitations and work with the Recreation Therapists to modify the veterans’ care plans accordingly. ” 125 Often, there is no way to categorize or divine an overarching explanation for why some jobs are held to be equal, but others are not. The decisions are highly dependent on the facts of each case, and no two are exactly alike. The difference in results often comes down to the facts a plaintiff or an employer can successfully marshal in their favor. For example, in Dass v. City University of New York , 126 the District Court for the Southern District of New York dismissed an EPA complaint where its allegations of other forms of discrimination undercut the claims that the plaintiff was “similarly situated” to other employees who did not suffer such discrimination. In that case, a female Athletic Director of a community college alleged that she was paid substantially less than other Athletic Directors in the same University system. 127 The Court held that her allegations were insufficient, noting that “Plaintiff's allegations reveal that all of the other Athletic Directors referenced in the complaint worked at different colleges in the CUNY system, which has twenty-five different educational institutions,” and that she “does not allege any facts suggesting that her position, experience, skills, and responsibilities were substantially equal to those of the male Athletic Directors at these different CUNY schools, or that she performed equal work. ” 128 The plaintiff’s complaint was self-defeating because it acknowledged that she performed tasks and responsibilities outside the scope of an Athletic Director’s responsibilities and had a smaller staff than other Athletic Directors. Given those allegations, the court was left to conclude that “Plaintiff's claim cannot proceed on these bare allegations of general job descriptions and her belief that other Athletic Directors were ‘similarly situated,’ especially given the specific factual allegations indicating that Plaintiff's position, and job responsibilities, were unique.” 129 120 Id. 121 Badgerow v. REJ Props., Inc. , 974 F.3d 610 (5th Cir. 2020). In that case, a female financial advisor working at a franchise financial advisory firm alleged that she was paid less than other male assistant financial advisors. She was paid on a salary draw plus commission basis, meaning that she had to repay her salary draw by deducting it from commissions earned. She alleged that other male assistant financial advisors were paid on a salary plus commission basis, meaning that they were able to keep their salary on top of their commissions. The court granted summary judgment in favor of the employer, however, because plaintiff’s comparators all had significantly more seniority than plaintiff and had significantly larger books of business than plaintiff, who was new to the business. Moreover, those comparators to whom plaintiff was most similar had, in fact, been paid on the same salary draw plus commission basis as plaintiff. Badgerow v. REJ Properties, Inc. , 383 F. Supp. 3d 648, 664 (E.D. La. 2019). 122 Id. at 617. 123 Id. 124 Wilson v. Wilkie , No. 2:18-CV-515, 2020 WL 2128613 (S.D. Ohio May 5, 2020). 125 Id. at *8. 126 Dass v. City Univ. of N.Y. , No. 18-CV-11325 (VSB), 2020 WL 1922689 (S.D.N.Y. Apr. 21, 2020). 127 Id. at *1. 128 Id. at *6. 129 Id. at *7.