Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 21 employer could be considered a single establishment for purposes of the EPA, pointing to the employer’s nationwide job descriptions and policies, the frequency with which plaintiffs had transferred store locations, and the fact that final compensation decisions were approved by the central office . 146 Those same factors allowed the court to conclude that conditional certification of a nationwide collective action was appropriate: “[b]ecause the focus of the inquiry at this conditional certification stage is not whether there was an actual violation of law, but rather whether the proposed Plaintiffs are similarly situated, the court finds that Plaintiffs have met their modest factual burden. ” 147 Even if plaintiffs are successful in obtaining conditional certification of a collective action, that collective action may later be decertified after discovery has revealed substantial differences among collective action members, which makes certification through trial untenable. For example, in Bertroche v. Mercy Physician Associates, Inc. , 148 the court granted the employer’s motion to decertify the collective action, holding that further discovery had revealed that the nature of plaintiffs’ claims would require an individualized determination of the factual situation of each opt-in physician’s practice. The court had initially granted conditional certification, holding that the plaintiff was not required to show at that stage that the wage disparity was due to discrimination, nor that other potential plaintiffs are “similarly situated.” 149 Rather, it was enough merely to show that other potential plaintiffs exist who may have been discriminated against based on their gender, which defendants’ own data showed. Plaintiffs’ theory in support of proceeding to trial as a certified collective action was that the common compensation scheme under which plaintiffs were paid was itself a discriminatory policy. 150 The district court agreed with plaintiffs that if “proof of a single policy, or of conduct in conformity with that policy, shows a violation as to all plaintiffs, those plaintiffs may be similarly situated for purposes of the Equal Pay Act.” 151 However, the employer argued that because the compensation scheme was designed to account for each physicians’ different medical and business decisions, which would result in different total compensation amounts, plaintiffs and opt-ins cannot be similarly situated to each other for purposes of proceeding as a certified collective action. 152 Similarly, in Ahad v. Board of Trustees of Southern Illinois University , 153 the District Court for the Central District of Illinois initially conditionally certified a collective action of female faculty physicians. The court was satisfied that plaintiffs had met their minimal burden to obtain conditional certification at step one of the process because all faculty physicians performed the same job duties involving patient, teaching, and administrative functions . 154 However, the court later denied plaintiff’s request for class certification of the Eleventh Circuit recognizes that “[u]nder appropriate circumstances, multiple offices may constitute a single establishment for EPA purposes”) (citing Marshall v. Dallas Indep. Sch. Dist ., 605 F.2d 191, 194 (5th Cir. 1979)). 146 Finefrock, 344 F. Supp. 3d at 789. 147 Id. at 791. 148 Bertroche v. Mercy Physician Assocs., Inc. , No. 18-CV-59-CJW-KEM, 2019 WL 4307127 (N.D. Iowa Sept. 11, 2019). In that case, a female physician alleged systemic wage discrimination against female family practice physicians. The court ordered the parties to prepare data compilations showing the average compensation for male physicians versus female physicians. 149 Bertroche v. Mercy Physician Assocs., Inc. , No. 18-CV-59-CJW, 2018 WL 4107909, at *3 (N.D. Iowa Aug. 29, 2018). Although the parties disagreed about which physicians should be included in the average, the court noted that even defendants’ analysis showed that other potential plaintiffs exist because it showed that some female physicians were paid less than their male peers. Id. The court disregarded defendants’ claims that the pay disparities can be accounted for by the fact that different physicians expend different amounts of effort to earn their compensation, and that non-medical practice revenue contributed to total compensation for some physicians. Id. at *4. 150 Bertroche , 2019 WL 4307127, at *24. 151 Id . (citing Bouaphakeo v. Tyson Foods, Inc. , 765 F.3d 791, 796 (8th Cir. 2014)). 152 Id at *25. The district court held that, “the different ways in which physicians operate their medical practices can serve to differentiate them from one another such that they should not be able to proceed collectively,” id at *26 (quoting Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 15-CV-3308, 2019 WL 1433753, at *4 (C.D. Ill. Mar. 28, 2019)), and that the dissimilarities among plaintiff’s medical practices weighed in favor of decertifying the collective action: “because the compensation scheme looks at the specific factual situation of each physicians’ practice, pursuing this avenue would require each plaintiff to present evidence that is specific to her medical practice,” id at *28. 153 Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 3:15-CV-03308, 2017 WL 4330377 (C.D. Ill. Sept. 29, 2017). 154 Id. at *4.