Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 43 It can also be important that, unlike the EPA, there is no “establishment” requirement for plaintiffs proceeding under Title VII. In Lindsley v. TRT Holdings , 352 the Fifth Circuit reversed and remanded a decision granting summary judgment on behalf of an employer. The district court held that Directors from other locations of the same hotel chain are not part of the same “establishment” where plaintiff worked, meaning that none of those Directors were proper comparators for purposes of analyzing her discrimination claim . 353 The Fifth Circuit held that the plaintiff had “put forth a prima facie case of sex discrimination,” and stated “[i]f there is a good explanation for that disparity, [employer] is required to put one forth if it wishes to prevail in this litigation. [Employer] failed to do so. Yet the district court granted summary judgment to [employer] anyway. ” 354 The Fifth Circuit pointed to the fact that plaintiff had established that she was paid less than her predecessors in the same position, and “[n]o more is needed to establish a prima facie case.” 355 The court went on to agree that the case did not present the “unusual circumstances” that might warrant departure from the usual rule regarding an “establishment” under the EPA. However, the Fifth Circuit held that the same analysis does not apply under Title VII, or to plaintiff’s state law claims, and faulted the district court for failing to address that issue in the context of those statutory schemes: “Those statutes contain no ‘establishment’ requirement. Yet the district court did not address whether [plaintiff] established a prima facie case under Title VII and the Texas Labor Code based on male food and beverage directors at different [employer] locations.” 356 Similarly, in Black v. Barrett Business Services, Inc. , 357 discussed in more detail above, the District Court for the District of Idaho held that the plaintiff did not work in the same establishment as all but one of her comparators because the other managers worked at another branch. 358 In the Ninth Circuit, that decision depends not just on the geographic distance between offices, but also on “the nature of the services provided and the degree of central administration, such as budgeting, hiring, and day-to-day management. ” 359 The court found that there was no reason to combine the branches in this case, because, among other things, the branches were managed independently, had their own sales and profitability goals, each serviced and solicited distinct clients, and that there was never any significant overlap in the daily operations. 360 Accordingly, for purposes of the EPA – but not Title VII – the plaintiff was limited to just one comparator. 4. Who Is An “Employer” Under The EPA? One issue that is frequently litigated in EPA lawsuits is whether one or more entities can be considered the “employer” of a complaining employee. Often that determination depends on what test is used to determine joint employment. Under Title VII, subject to some enumerated exceptions, an “employer” means “a person engaged in an industry affecting commerce who has fifteen or more employees for each 352 Lindsley v. TRT Holdings , Inc. , 984 F.3d 460, 464 (5th Cir. 2021). In that case, a hotel Food and Beverage Director alleged that she was paid less than other Food and Beverage Directors who worked at different outposts of the same hotel chain in different cities in Texas. 353 Lindsley v. TRT Holdings , No. 3:17-CV-2942-X, 2019 WL 6467256, at *1 (N.D. Tex. Dec. 2, 2019). The district court acknowledged that there exist some unusual circumstances in which multiple physical locations can count as a single establishment, but held that those situations were not present in this case. In particular, the district court held that the hotel chain’s corporate headquarters’ influence over its member locations was limited. Id. at *6. The evidence demonstrated that officers from individual hotel locations have a say in determining the salaries of their own Food and Beverage Directors. Id. In particular, the evidence showed that the last person plaintiff interviewed with for the job was someone from the hotel location where she was eventually employed, rather than someone from corporate, and that person gave her the offer even though it went against a corporate employee’s recommendation. Id. To the district court, this demonstrated that individual hotel locations had significant autonomy in employment decisions. The district court concluded, “[plaintiff] has failed to show that a single establishment encompasses more than [the Corpus Christi hotel location where plaintiff worked]. Consequently, none of the Food and Beverage Directors from other [hotel chain] locations are eligible pay comparators for [plaintiff’s] equal pay act claim.” Id. 354 Lindsley , 984 F.3d at 464. 355 Id. at 467. 356 Id. at 468. 357 Black v. Barrett Bus. Servs., Inc. , No. 1:18-CV-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019). 358 Id. at *5. 359 Id. (quoting Winther v. City of Portland , 21 F.3d 1119, at *1 (9th Cir. 1994)). 360 Id. at *6.