Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 35 done so when considered “in a vacuum,” but not when considered in the full context of the history of the college’s hiring process. The court noted that the college had posted for plaintiff’s comparator’s position on several occasions with different salary ranges. Its first attempt at hiring someone into that position offered a lower salary and did not generate enough qualified candidates. When it posted again at a higher salary range, it was able to attract a pool of qualified candidates. The court concluded: “considering these facts, expecting parity between a salary needed to retain an employee and a salary needed to recruit an employee with similar experience is not justified.” 277 The court also rejected plaintiff’s other arguments concerning pretext and granted the employer’s motion for summary judgment. In Anderson-Strange v. National Railroad Passenger Corp. , 278 the District Court for the District of Delaware rejected a claim that the reclassification of a manager’s position to a lower pay grade was merely pretext for discrimination where it was done pursuant to a restructuring plan and there was no evidence that that plan had been inconsistently applied. In that case, a female District Manager of a train station alleged that she was underpaid as compared to her predecessor in that position and other male Station and District Managers. 279 But the court held that Plaintiffs’ proffered comparators managed more stations across a larger geographic territory, and they managed direct reports that were spread across those multiple stations – factors that were consistent with plaintiff’s employer’s rationale for reclassifying her position into a lower pay grade. 280 Some courts have focused more heavily on an employer’s state of mind to decide the pretext analysis. In Hornsby-Culpepper v. Ware , 281 for example, the Eleventh Circuit held that the touchstone of the pretext inquiry centers on the employer’s beliefs, not the employee’s beliefs; “a plaintiff is not allowed to merely recast an employer’s proffered nondiscriminatory reasons or substitute her business judgment for that of the employer.” 282 Similarly, in Black v. Barrett Business Services, Inc. , 283 the court rejected plaintiff’s attempt to show that an employer’s reasons were a pretext for discrimination because she was not able to present evidence to show discriminatory animus on the part of her supervisors or fellow branch managers. 284 Moreover, the employer was able to show that it had hired other female branch managers at salaries that were higher than plaintiff’s salary and higher than other male branch managers, and that there were other male branch managers who, like plaintiff, never received a salary raise, and that it had increased the salaries of other female branch managers over time . 285 277 Id. at *12 (emphasis in original). 278 Anderson-Strange v. Nat’l R.R. Passenger Corp. , No. 17-CV-1859-RGA, 2019 WL 2438842 (D. Del. June 11, 2019). 279 Id. at *1. Her employer argued that her lower salary was not due to her sex, but rather due to, among other things, a nationwide restructuring plan, which was intended to reflect the differences in complexity and the scope of different management positions. Id. at *4. The restructuring plan assigned different titles and pay bands based on the number of stations managed, the types of stations managed, the size of the territory managed, ridership, revenue, and the number of direct reports. Id. 280 Id. at *4-5. 281 Hornsby-Culpepper v. Ware , 906 F.3d 1302 (11th Cir. 2018). In that case, a County Clerk complained about wage discrimination when she was hired at a lower salary than her predecessor in that position and when her request for a higher salary was denied. Id. at 1307. The employer provided three non-discriminatory reasons for the lower salary, which involved budgetary constraints and the fact that plaintiff had previously been terminated from that position. Id. at 1312-13. Although plaintiff disputed the proffered reasons, the Eleventh Circuit found that she had “failed to point to any affirmative evidence establishing that his proffered reasons were false or a pretext for unlawful sex discrimination.” Id. at 1314. 282 Id . at 1313 (quoting Alvarez v. Royal Atlantic Developers, Inc. , 610 F.3d 1253, 1265 (11th Cir. 2010)). See also Hall v. Ala. State Univ. , No. 2:16-CV-593-GMB, 2019 WL 137593, at *11 (M.D. Ala. Jan. 8, 2019) (“Merely questioning the wisdom of a reason is not sufficient as long as the reason is one that might motivate a reasonable employer. . . . Hall's arguments question whether ASU should have relied on [comparator’s] experience and success but do not undermine ASU's reliance on those factors. . . . This court cannot conclude, therefore, that a sufficient question of fact as to pretext exists.”). 283 Black v. Barrett Bus. Servs., Inc. , No. 1:18-CV-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019). In that case, a branch manager of an employee staffing and recruiting company who complained that she was paid less than equally qualified branch managers at her branch and a nearby branch. The employer argued that plaintiff’s comparators were paid more because they had experience that the plaintiff did not have. Id. at *6. In particular, the employer pointed to the fact that the comparators had significant experience growing and managing their own businesses. The Company’s strategy was to hire branch managers who could successfully build their branch into multi-million dollar revenue centers. Id. at *7. 284 Id. at *8. 285 Id. at *9.