24 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP quickly increased his pay above hers. The court ruled at the time that “[a]n employer cannot evade liability under the Equal Pay Act merely by paying a male successor a ‘starting’ wage below that of a female predecessor, only to turn around and increase his pay above that of hers.”140 But this theory did not pan out. Although plaintiff’s successor did receive a raise soon after hire, his new wage was still less than plaintiff’s final wage. Plaintiff also argued that her successor’s wages were increased more quickly than hers, noting that in her first three years on the job, her pay increased by 10.3% overall, for an annual increase of 3.4%, whereas her successor’s pay was increased by 14.7% overall, for an annual increase of 4.9% in his first three years on the job.141 The court rejected this argument, noting that plaintiff’s slower increase was explained by factors other than sex; namely, a pay freeze imposed by the governor during a portion of her employment, and other political factors that allowed for a faster increase during her successor’s tenure.142 Similarly, in Moore v. Penfed Title, LLC,143 the court rejected a plaintiff’s Title VII wage discrimination claim based on his theory that he was not paid enough above comparators who held positions with less responsibility than him: “[Plaintiff] cannot make out the fourth prima facie element of a Title VII unequal compensation discrimination claim with respect to his overall salary. His argument boils down to an objection that he was not awarded enough of a premium above all other . . . employees for his unique role within the organization. In this respect, the Court will not second guess [employer’s] compensation decisions absent a prima facie showing of compensation discrimination.”144 Similarly, in Wentzel v. Williams Scotsman Inc.,145 although the court held that the plaintiff had established that the work of two Account Executives was “substantially equal,” summary judgment was granted to the employer because it turned out that plaintiff actually earned more money than her male comparator.146 The plaintiff argued that she had to work significantly harder than her male comparator in a manner that was disproportionate to her additional compensation. The court held that: “[e]ven assuming that [plaintiff] had to work harder than [comparator] for her pay, she was still paid more. The EPA’s very text precludes a claim under these circumstances.”147 2. Showing That Work Is “Equal” Or “Substantially Similar” To establish a prima facie case under the federal EPA, an employee must establish that they were paid less than an employee of the opposite sex—often referred to as a “comparator”—for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under 140 Id. at *11. 141 Id. at *12. 142 Id. 143 Moore v. Penfed Title, LLC, No. 1:20-cv-0867, 2021 WL 2004785 (E.D. Va. May 18, 2021). In that case, a Vice President of a credit union alleged he was discriminated against on multiple grounds, including with respect to compensation. Proceeding under Title VII, the plaintiff alleged that he was paid “a relatively low salary” due to discrimination against him, that he was wrongfully denied a 5% year-end bonus, and that his supervisor refused to give him a performance evaluation that would have allowed him to receive a bonus or merit increase. Id. at *3. 144 Id. at *5. 145 Wentzel v. Williams Scotsman Inc., No. 18-cv-02101-PHX-SMB, 2020 WL 1158547 (D. Ariz. Mar. 10, 2020). The plaintiff was the only female Account Executive employed at a modular office space provider. Her comparator was the only other Account Executive working at the same office, who was male. 146 Id. at *3-4. 147 Id. at *4 (emphasis in original). See also Rodriguez v. City of Corpus Christi, No. 2:21-cv-00297, 2023 WL 6149914 (S.D. Tex. Aug. 7, 2023) (rejecting plaintiff’s argument that she was underpaid compared to her comparator—even though she earned more than him in absolute compensation—because his salary was a higher percentage of the market average after employer said all executive employees would receive raises such that they would earn 90-95% of the market average: “[plaintiff] has not cited any authority for her theory that pay relative to the market rate is the proper factor to consider, as opposed to absolute pay”). But see King v. Provo City, No. 2:23-cv-219-DAK-DBP, 2024 WL 170687 (D. Utah Jan. 16, 2024) (allowing equal pay claim to survive motion to dismiss, even though plaintiff was paid the same as her alleged comparator: “If seniority is relevant to Defendants’ defense, it can be equally relevant to [plaintiff’s] prima facie claim. At the pleading stage, [plaintiff] does not know the pay of every other officer in the department. She knows only the pay of one other officer. She alleges that [employer] paid her and [comparator] the same despite the fact that she has four years more experience as a sergeant and that under [employer’s] pay policy that should not be the case.”).
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