©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 27 and the scope of the putative collective action was expanded to include teachers as well. The district argued that “multiple individualized decisions by a small group of supervisors does not suffice to prove a ‘single decision, policy, or plan,’” and that the plaintiffs had therefore failed to show that the claims of the putative collective action arise from a single policy that violated the EPA.205 The court disagreed, noting the lenient standard applicable at the conditional certification stage: “the Court finds at this stage of the litigation, Technology Specialist and Elementary School Assistant Principal Plaintiffs have established a colorable basis for their claim that the putative class members were the victims of a single decision, policy or plan by the district. Plaintiffs' allegations and evidence indicate the District may have implemented a policy that uniformly results in female employees in these positions being paid less than similarly situated male employees in violation of the [EPA].”206 In particular, the court relied on grievances filed by four elementary Principals and four salary review requests filed by Assistant Principals, as well as sworn affidavits from four of the plaintiffs. The court held that this was sufficient to show that “the District had a common policy of crediting education, experience, and tenure differently when making salary placement determinations, depending on the sex of the applicant or employee.”207 Conditional certification was denied with respect to the teacher plaintiffs, however, because they had not submitted any evidence to support their claim for collective relief and relied solely upon the allegations in the complaint.208 “Teacher Plaintiffs do not support their claims with anything more than the averments in the Third Amended Complaint. . . . Teacher Plaintiffs' claims are unsupported by affidavits or other evidence showing personal knowledge, identifiable facts, or a legal connection that would indicate hearing their cases together with those of the Elementary School Assistant Principal and Technology Specialist Plaintiffs would promote judicial efficiency.”209 Similarly, in De Block v. Speedway LLC,210 the District Court for the Eastern District of Pennsylvania conditionally certified a collective action on the strength of just a few declarations and policy documents. In that case, a female general manager sought to represent all female general managers, who she alleged were paid less than her male counterparts. The plaintiff had presented as evidence, among other things, her own deposition testimony and sworn declarations from five present or former female general managers, in addition to a few company forms, including the Compensation Manual.211 The court held that those documents were sufficient at the conditional certification stage to meet the modest factual showing necessary to establish that individuals employed as general managers performed equal jobs: “Plaintiff has shown sufficient facts for a conditional finding that salaried Speedway general managers are similarly situated with regards to the allegations, both by having similar duties and responsibilities across Speedway stores and by being subject to a common compensation policy.”212 The crux of the matter, however, is whether a plaintiff can establish a common policy that led to the alleged EPA violations. If an employer can marshal enough evidence of its own to show that no such common policy exists, then certification can be defeated, even at the conditional certification stage. For example, in Winks v. Virginia Department of Transportation,213 an Architect/Engineer for the Virginia Department of Transportation alleged she was paid less than male employees and sought to conditionally certify a collective action of the approximately 60 Architect/Engineers, out of approximately 400, who are women. Among other things, the plaintiff argued that the employer requested prior pay history and prior 205 Id. at *3. 206 Id. 207 Id. at *4. 208 Id. at *4-5. 209 Id. at 5. 210 De Block v. Speedway LLC, No. 20-cv-824, 2021 WL 4818310 (E.D. Pa. Oct. 15, 2021). 211 Id. at *2. 212 Id. The court rejected the employer’s argument that plaintiff could not have met her burden because it applied a facially neutral compensation policy, which it argued gave it a presumption that plaintiff must overcome. The court rejected this argument, holding that objection went to the merits of plaintiff’s case and was not appropriately argued in opposition to conditional certification. Id. at *3. 213 Winks v. Va. Dep’t of Transp., No. 3:20-cv-420-HEH, 2021 WL 2482680 (E.D. Va. June 17, 2021).
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