Developments in Equal Pay Litigation

8 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP of Converse , 33 the court acknowledged that the evidence showed that a female firefighter was better paid than all of her male peers with the exception of one. 34 However, the court concluded that “[t] is enough for the plaintiff to show that there is discrimination in pay with respect to one employee of the opposite sex.” 35 However, other courts have pointed to the fact that members of the opposite sex were paid more as tending to disprove the existence of discrimination. 36 Sometimes even this threshold issue can be quite complicated. For example, in Atta v. Cisco Systems, Inc. , 37 the District Court for the Northern District of Georgia rejected a plaintiff’s attempt to establish a wage disparity by relying on statistics regarding employees’ compensation ratios, rather than a simple salary comparison. In that case, a female marketing department employee alleged that she was paid less than male employees in the same pay grade who worked in the same department. There were eleven total members of that group in the United States who were in the same pay grade . 38 The plaintiff wanted the court to infer discrimination from the fact that the male workers’ compensation ratios, on average, exceeded the women’s ratios. The court was unwilling to draw that conclusion from the statistics she presented. Among other things, the court held that “statistics may be a piece of circumstantial proof bolstering an inference of discrimination, but to be useful, the statistics must clearly show actual differences in treatment, and their usefulness therefore ‘depends on all of the surrounding facts and circumstances.’ ” 39 But plaintiff’s statistics merely repackaged the differences in pay among the eleven members of the same pay grade, and hence had merely repackaged her prima facie case. The court held that this does not establish an inference of discriminatory pay practices; to do so from that evidence “turns the established framework on its head, and simply begs the question.” 40 The court also noted that the small sample size of plaintiff’s statistical analysis meant that conclusions from the sample could not be drawn with any guarantee of reliability. The court then compared plaintiff’s salary with those of her male comparators and found that she had been paid more than two male comparators in her first year in their pay grade, and that the employer had accounted for other differences in pay by pointing to geographic disparities and time in grade, which were both factors impacting pay in the employer’s compensation system. 41 However, in Duke v. College of San Francisco , 42 the District Court for the Northern District of California applied a different standard for employees in a professional setting. In that case, a community college Associate Vice Chancellor of Student Affairs claimed that he was paid less than a female employee who held the same position. 43 The court had previously dismissed the plaintiff’s first attempt at pleading an EPA claim because he had not alleged that he was paid less than the average of wages paid to females who performed substantially equal work. According to the court, “[t]he proper test for establishing a prima 33 Gutierrez v. City of Converse , No. 5:17-CV-01233-JKP, 2020 WL 156707 (W.D. Tex. Jan. 10, 2020). 34 Id. at *3. 35 Id. (quoting Lenihan v. Boeing Co. , 994 F. Supp. 776, 799 (S.D. Tex. 1998)). 36 For example, in Jones v. Jefferson City Pub. Sch. , No. 2:18-CV-4054, 2019 WL 1118557 (W.D. Mo. Mar. 11, 2019), the court held that plaintiff had failed to establish a wage disparity due to his admission that both male and female comparators were paid more than him. In that case, a Credit Recovery Supervisor for a city school district alleged that he was paid as an aide, rather than as a certified teacher, even though his position required at least 60 hours of college credit and a substitute teaching certificate. Id. at *1. Plaintiff based his EPA claim on a comparison of his job to the duties and salaries of all female teachers at the city high school. However, he conceded that both male and female teachers were paid more than him. The district court held that this admission was fatal to plaintiff’s claim because “if sex-based discrimination is not the reason for disparity in pay, the disparity cannot form the basis of a claim under the Equal Pay Act.” Id. at *2. The court further held that because plaintiff had admitted that both male and female teachers are paid on the same salary schedule, which is separate from the salary schedule that applied to his position, and that the pay scale for the teachers’ salaries is the same for males and females, it would then be impossible for plaintiff to show that his employer paid different salaries to men and women for equal work performed under similar conditions. Id. 37 Atta v. Cisco Systems, Inc. , No. 1:18-CV-1558-CC-JKL, 2020 WL 7384689 (N.D. Ga. Aug. 3, 2020). 38 Id. at *25. 39 Id . at *26 (quoting Int'l Bhd. of Teamsters v. United States , 431 U.S. 324, 340 (1977)). 40 Id. 41 Id. 42 Duke v. Coll. of S.F. , 445 F. Supp. 3d 216 (N.D. Cal. Apr. 10, 2020). 43 Id. at 221.