Plaintiff wins Equal Pay Act appeal

The Court of Appeals holds that a jury may find that a former Verizon employee has a claim under the Equal Pay Act. 

The case is Moll v. Telesector, Inc., issued on February 28, two years after oral argument. The sexual harassment and retaliation summaries are at these links. In this portion of the decision, the Court of Appeals (Kearse, Walker and Sullivan) holds that one of plaintiff's coworkers is a legitimate comparator under the EPA's strict comparison guidelines.

To make out a prima facie case on equal pay, the plaintiff must show "[1] the employer pays different wages to employees of the opposite sex; [2] the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and [3] the jobs are performed under similar working conditions." 

As for comparators Winley and Dean, they were hired at $90,000 and $88,000 per year at at time when Verizon was looking for specialists on voice and data, enticing job applicants to leave companies that were more entrenched in these products. Plaintiff did not have this kind of experience when these two men were hired. On these facts, plaintiff cannot claim an EPA violation based on what the fellas were making. Her skills were not comparable to their skills, and their higher salaries were therefore justifiable under the EPA.

Comparator Spencer, however, gives plaintiff a case under the EPA because he was not hired away from another company for his management duties, and he was a longtime Verizon employee who did not have the skills that Winley and Dean had. Spencer got a raise when the company wanted to transfer him to a different division; he got that raise, elevating him over plaintiff's salary. When he left the company, Spencer ultimately earned more than $15,000 than plaintiff. Adding to its analysis, the Court of Appeals writes:

even if Spencer's previous experience could explain the difference between his and Moll's salaries in 1997 when their employment in ESG began, that factor would not explain why the salary gap persisted. Differences in education and experience at the time of hiring are likely to matter less as the employees spend years on the job, leading to less of a disparity between salaries. See generally King v. Acosta Sales & Marketing, Inc., 678 F.3d 470, 473-75 (7th Cir. 2012). That did not occur here. When Spencer left ESG in 2004 he was still an SE II, and Moll had been promoted to SE II. Yet, the difference between their salaries after both had been in ESG for those seven years had not shrunk but in fact had increased. 

That citation to a Seventh Circuit case shows that Moll's case raises a new issue in the Second Circuit. The extended discussion on this issue also shows that EPA cases require careful analysis of the plaintiff's case to ensure her comparators are squarely like her case. The Court of Appeals notes that plaintiff abandoned her Title VII case on the equal pay claim. Since this case was briefed a few years ago, that may be because the Court of Appeals had not yet held that Title VII equal pay claims are easier to win than EPA claims, as Title VII does not require an exact match between the plaintiff and her comparators. Still, plaintiff is able to proceed to trial on her EPA claim because of the Spencer comparison, and one cause of action is better than none.