Developments in Equal Pay Litigation

34 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP manager physically located within plaintiff’s geographic territory, which would allow for regular visits and more face-to-face interactions. 266 The court held that, while the employer’s proffered justification could explain the relocation itself, it did not explain why plaintiff was not offered the chance to relocate along with that position . 267 The employer tried to argue that plaintiff had not done enough to keep her position. But the court noted that it was objectively reasonable for her to conclude that was not an option when “she has been told that her supervisor “need[ed] her gone,” . . . when she has been informed by her direct supervisors that her employment will terminate in 45 days, has been offered a severance package, and has been told that transferring to a new location is not an option. ” 268 The court concluded that a reasonable jury could find that an employee in those circumstances could have believed that continued employment with the company was futile, and it denied summary judgment to the employer on that claim. Similarly, in Emanuel v. Alabama State University , 269 a university professor alleged that he was paid less than a similarly-situated female employee due to discriminatory compensation decisions made by his employer throughout his career . 270 The university argued that plaintiff’s compensation was less than his comparator’s due to a “rank adjustment” that was given years earlier to all employees at a time when plaintiff was still an associate professor, but when his comparator was a full professor. 271 However, plaintiff was able to point to a subsequent salary schedule, which was implemented two years after the rank adjustment, that was intended to replace previous salary considerations. 272 The court refused to grant summary judgment for the employer on these facts, holding that “evidence that the 2009-10 [] Salary Schedule replaced all previous salary considerations demonstrates that there is a genuine issue of material fact as to whether the non-discriminatory reasons offered by [employer] are pretextual.” 273 However, in Moore v. Baker , 274 the employer argued that a pay differential alleged by a Director of Student Support Services at a community college was justified by a number of factors other than sex, including plaintiff’s comparator’s prior salary, additional federal grant funds available, his higher level of education and experience, and the non-tenure track nature of plaintiff’s position. 275 The court held that this satisfied the employer’s burden to establish an affirmative defense to plaintiff’s claims. The plaintiff then tried to prove that her employer’s stated reasons were merely pretext for discrimination, alleging that the college had simply reverse-engineered her comparator’s salary and arguing that it was based entirely on his last, highest salary at a different university . 276 The court held that plaintiff could rebut the employer’s reliance on experience by showing that she had equal or more experience of the same type as her comparator. The court was persuaded that she had 266 Id. at *15. 267 Id. 268 Id. 269 Emanuel v. Ala. State Univ. , No. 2:17-CV-658-ALB, 2019 WL 3246398 (M.D. Ala. July 18, 2019). 270 Id. at *1. 271 Id. at *3. 272 Id. 273 Id. Similarly, in Fortenberry v. Gemstone Foods, LLC , No. 5:17-CV-1608-AKK, 2018 WL 6095196 (N.D. Ala. Nov. 21, 2018), a purchasing manager argued that she was discriminated against on account of her gender because she was not paid for weekend work, while her male counterparts were. 273 The company argued that only “production managers” were paid weekend pay and that plaintiff’s role as a purchasing manager was not “pertinent to the plant’s production needs.” Id. at *4. However, this policy had never been discussed with plaintiff before it was applied, and when she did discuss it with the company, she had been given several different reasons for why she did not receive weekend pay. Moreover, she presented evidence to show that the company applied its policy inconsistently, pointing to, among other things, a maintenance manager who did receive weekend pay and whose role was not essential to production. 273 Id. The court held that plaintiff had established a colorable basis for a jury to conclude that the policy was pretext for gender discrimination: “a reasonable jury could find that [employer’s] inconsistent application of its weekend pay policy and its shifting reasons for why it did not pay [plaintiff] for weekend work show that [employer’s] policy is pretext for a gender- based reason for the pay differential.” Id. 274 Moore v. Baker , No. 2:18-CV-00311-KD-B, 2020 WL 4934274 (S.D. Ala. July 20, 2020). 275 Id. at *10. 276 Id. at *11.