Finefrock et al v. Five Guys Operations, Llc

BRIEF IN OPPOSITION re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in Count I

M.D. Pa.September 12, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JODY FINEFROCK, JULIA FRANCIS, and SUSAN BARNINGER, individually and on behalf of a collective of others similarly-situated, Plaintiffs, v. FIVE GUYS OPERATIONS, LLC, Defendant. Civil Action No. 1:16-cv-01221-SHR (Judge Sylvia H. Rambo) (Electronically Filed) PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COUNT ONE OF PLAINTIFFS’ COMPLAINT Plaintiffs Jody Finefrock, Julia Francis, and Susan Barninger (collectively, “Plaintiffs”) file this Brief in Opposition to Defendant Five Guys Operations, LLC’s (“Defendant” or “Five Guys”) Motion to Dismiss Count One of Plaintiffs’ Complaint (Doc. 18) and Brief in Support (Doc. 22)1. STATEMENT OF FACTS I. Five Guys’ Executive Management Maintained Top-Down Control of Restaurant-Level Hiring, Job Duties, and Wages. Five Guys owns and operates over 1,000 restaurants throughout the country. 1 Defendant filed its Answer and Affirmative Defenses (Doc. 17) to Plaintiffs’ Complaint on August 12, 2016, which answered only Plaintiffs’ individual claims. In its Motion to Dismiss (Doc. 18) and Brief in Support (Doc. 22), Defendant seeks dismissal of only Plaintiffs’ collective action claim pursuant to the Equal Pay Act, 29 U.S.C. 206, et seq. Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 1 of 14 2 (Compl., Doc. 1, ¶ 1.) Plaintiffs were each restaurant-level employees of Five Guys during the three years prior to the filing of this Complaint. (Compl., ¶¶ 10, 11, 12.) Plaintiffs allege that they and other similarly situated female employees of Five Guys were paid less than male employees for jobs which required equal skill effort, responsibility and which were performed under the same working conditions. (Id., ¶¶ 18, 19, 20, 52, 55, 62, 63, 64.) Five Guys operated a rigid, top-down corporate structure that dictated hiring decisions and wages for all restaurant-level positions across the country. (Id., ¶¶ 14, 17, 55, 63.) Importantly, labor budgets and wage decisions were not made at the individual restaurant level; instead, labor budgets were decided by Area Managers and District Managers in accordance with Five Guys’ executive leadership team’s instructions. (Id., ¶¶ 14, 15, 17, 18.) Area Managers reported directly to the company’s Chief Financial Officer, which facilitated the company’s top-down wage and job duty policy. (Id., ¶¶ 16, 17.) Based on the control exercised by Five Guys’ executive leadership team through its Area Managers and District Managers, Five Guys controlled the hiring, wages, and job duties of restaurant-level employees throughout the country. (Id., ¶¶ 14, 15, 16, 17, 18.) II. Plaintiff Finefrock’s Specific Allegations of Equal Pay Act Violations. Plaintiff Finefrock was employed by Five Guys from July 2012 until September 2015. (Id., ¶¶ 22, 35.) Between February 2013 and August 2013, Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 2 of 14 3 Plaintiff Finefrock held the position of Assistant General Manager of a York, Pennsylvania Five Guys restaurant. (Id., ¶¶ 26, 30.) During that time, Plaintiff Finefrock trained a specific male Five Guys employee who had recently been hired as an Assistant General Manager. (Id., ¶ 27.) That specific male Five Guys Assistant General Manager earned an annual salary of $35,000 while Plaintiff Finefrock – who was training this male colleague in the same position, in the same store – earned a $30,000 annual salary. (Id., ¶ 27.) In August 2013, Plaintiff Finefrock was promoted to General Manager of the same Five Guys restaurant in York, Pennsylvania. (Id., ¶ 30.) Thereafter, Plaintiff Finefrock learned that another contemporaneously promoted male Five Guys General Manager was being paid an annual salary of $40,000 while Plaintiff Finefrock earned $38,000. (Id., ¶ 31.) On April 15, 2015, Plaintiff Finefrock confronted her District Manager and Area Manager regarding the fact that herself and two other female Five Guys General Managers were paid less than two specific male colleagues. (Id., ¶ 34.) III. Plaintiff Francis’ Specific Allegations of Equal Pay Act Violations. Plaintiff Francis was employed continuously as a General Manager for three separate Five Guys restaurants between 2012 and 2015. (Id., ¶¶ 38, 45.) In 2014, Plaintiff Frances learned that a specific male colleague was promoted from Assistant General Manager to General Manager and was paid an annual salary of Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 3 of 14 4 approximately $41,000 to $42,000. (Id., ¶ 41.) At that same time and despite having been a Five Guys General Manager for years, Plaintiff Francis earned an annual salary of approximately $39,000 to $40,000, which was significantly less than the recently promoted male colleague. (Id., ¶¶ 40, 41.) Similarly, in December 2014, Plaintiff Francis learned that another specific male colleague at Five Guys was promoted from Assistant General Manager to General Manager and earned an annual salary of approximately $41,000 to $42,000. (Id., ¶¶ 42.) At that time, Plaintiff Francis earned only between $39,000 and $40,000 as a Five Guys General Manager performing the same job. (Id., ¶¶ 40, 42.) IV. Plaintiff Barninger’s Specific Allegations of Equal Pay Act Violations. Plaintiff Barninger was employed by Five Guys as a General Manager between 2012 and April 2015. (Id., ¶¶ 47, 51.) Plaintiff Barninger was an extremely successful Five Guys General Manager and served on the company’s General Manager Committee. (Id., ¶ 48.) Despite her success and years with the company, Plaintiff Barninger learned in that she was being paid less than a specific newly-hired male General Manager who Plaintiff Barninger was training to perform the same job. (Id., ¶ 49.) QUESTIONS PRESENTED (1) Have Plaintiffs sufficiently alleged Five Guys’ centralized control of restaurant-level hiring, wages and job duties necessary to establish that all Five Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 4 of 14 5 Guys restaurants may be treated as a single establishment in order to state a claim for violation of the Equal Pay Act under Federal Rule of Civil Procedure 12(b)(6)? Suggested Answer: Yes. (2) Have Plaintiffs sufficiently alleged the existence of individual male comparators who earned more pay than Plaintiffs for equal work in order to state a claim for violation of the Equal Pay Act under Federal Rule of Civil Procedure 12(b)(6)? Suggested Answer: Yes. INTRODUCTION AND SUMMARY OF ARGUMENT Five Guys’ approximately six page Motion to Dismiss can be distilled to two points: (1) Plaintiffs purportedly cannot state a claim for violation of the Equal Pay Act because Plaintiffs and the collective they seek to represent worked in different physical locations or “establishments”; and (2) Plaintiffs do not allege the names of the specific male comparators who Plaintiffs alleged were paid more by Five Guys for equal work. Both of these arguments fail. First, as detailed in the Complaint and Statement of Facts, supra, Plaintiffs alleged that the Five Guys’ executive leadership controls hiring, wages, and job responsibilities for all restaurant-level employees. As such and as district and circuit courts around the country have held, all Five Guys’ restaurants may be considered a single establishment under the Equal Pay Act. Five Guys relies on Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 5 of 14 6 four cases for the proposition that Plaintiffs have failed to allege that Plaintiffs worked in a single establishment. However, each of these four cases was either appellate review of a jury verdict or an order on a motion for summary judgment after fact discovery. At the motion to dismiss stage and accepting Plaintiffs’ allegations as true, Plaintiffs have sufficiently alleged that Five Guys controlled all of its restaurants to such a degree as to consider them all one establishment. Second, Five Guys incorrectly suggests that Plaintiffs’ Equal Pay Act claim should be dismissed for failure to specifically name the male comparators who earned more than Plaintiffs for equal work. None of the four cases on which Five Guys relies stands for this proposition. Regardless, Plaintiffs’ allegations in the Complaint reference specific individuals whose names were simply not used in the Complaint (a public filing) out of respect for their privacy. In fact, the Complaint specifically references several of these individuals as being trained by Plaintiffs. Five Guys will undoubtedly request and will be entitled to those male comparators’ names in discovery. To the extent the Court is persuaded by this argument, Plaintiffs request leave to amend the Complaint to include the names of the specific male comparators. Plaintiffs have more than adequately stated a claim for violation of the Equal Pay Act against Five Guys. For these reasons, Plaintiffs respectfully request the Motion to Dismiss be denied. Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 6 of 14 7 ARGUMENT I. Standard of Review for Motion to Dismiss Pursuant to Rule 12(b)(6). Rule 8(a)(2) requires a pleading to set out “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court refined— but did not alter—this pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), by holding that, to withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (noting notice-pleading standard, under Twombly, remains intact). In reviewing a complaint, the court must accept the truth of all factual allegations. Iqbal, 556 U.S. at 678. II. Plaintiffs’ Allegations of Centralized, Top-Down Control of Restaurants by Five Guys’ Corporate Leadership Satisfies the Single Establishment Requirement of the Equal Pay Act. Five Guys’ argument that Plaintiffs cannot satisfy the Equal Pay Act’s “single establishment” requirement is a factual dispute clothed as a motion to dismiss. Plaintiffs have alleged that Five Guys controlled the hiring, wages, and job duties of restaurant-level employees throughout the country. (Compl, ¶¶ 14, 15, 16, 17, 18.) For purposes of a stating a claim pursuant to the Equal Pay Act, Plaintiffs allegations are sufficient to satisfy the Equal Pay Act’s “single Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 7 of 14 8 establishment” requirement. The Equal Pay Act provides as follows: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions… 29 U.S.C. § 206(d)(1). Further, the term “establishment” in the context of the Equal Pay Act “refers to a distinct physical place of business rather than to an entire business or ‘enterprise’ which may include several separate places of business.” 29 C.F.R. § 1620.9(a). However, separate physical locations may be treated as a single establishment under the Equal Pay Act when a plaintiff makes allegations of centralized control over employment decisions such as hiring, wages, and job duties: [U]nusual circumstances may call for two or more distinct physical portions of a business enterprise being treated as a single establishment. For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and performed under similar working conditions. 29 C.F.R. § 1620.9 (emphasis added). “Courts identify ‘a widely followed standard recognizing that central control and administration of disparate job sites can support a finding of a single establishment for purposes of the EPA.’” Kassman v. KPMG LLP, No. 11 CIV. Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 8 of 14 9 03743 LGS, 2014 WL 3298884, at *8 (S.D.N.Y. July 8, 2014) (quoting Mulhall v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir. 1994)). “The hallmarks of this standard are centralized control of job descriptions, salary administration, and job assignments or functions.” Mulhall, 19 F.3d 586, 591. In Kassman, the district court concluded that the plaintiffs’ allegations of defendant KPMG’s control over job responsibilities and compensation policies were sufficient to meet the Equal Pay Act’s “single establishment” requirement. Kassman, 2014 WL 3298884, at *8. Similarly, in Coates v. Farmers Grp., Inc., No. 15-CV-01913-LHK, 2015 WL 8477918 (N.D. Cal. Dec. 9, 2015), the district court certified a collective action class of female attorneys around the country noting that the “single establishment” provision of the Equal Pay Act need not be considered until a decertification motion. Coates, 2015 WL 8477918, at *12; see also Barrett v. Forest Labs., Inc., No. 12 CV. 5224 RA MHD, 2015 WL 5155692, at *8 (S.D.N.Y. Sept. 2, 2015) (certifying a collective action class of women under the Equal Pay Act and noting that the single establishment “question appears to call for a fact-intensive assessment” that should be “determined at the summary- judgment stage or at trial.”). Plaintiffs have alleged that Five Guys’ corporate leadership controlled hiring, wage, and job duties in their restaurants throughout the country. (Compl, ¶¶ 14, 15, 16, 17, 18.) Plaintiffs’ allegations of systematic, centralized control by Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 9 of 14 10 Five Guys of its restaurant-level employees more than sufficiently state a claim for violation of the Equal Pay Act. III. Plaintiffs Identify Specific Male Comparators for their Equal Pay Act Claim. As discussed in the Complaint and Statement of Facts, supra, each Plaintiff has identified a specific male comparator at Five Guys who earned greater pay for equal work in the same positions the performance of which required equal skill, effort, and responsibility and which were performed under similar working conditions. Specifically, Plaintiffs have alleged the existence of an Assistant General Manager and multiple General Managers at Five Guys who were paid more than the specific Plaintiffs when they contemporaneously held those positions. Alleging the existence of specific male comparators is Plaintiffs’ sole burden with respect to identifying inequitable pay in order to state a claim under the Equal Pay Act. First, Plaintiff Finefrock identified a specific male Assistant General Manager and a specific male General Manager who were paid more than her when she also held those positions and performed equal work. (Compl., ¶¶ 26, 27, 30, 31.) Second, Plaintiff Francis identified two specific male General Managers who were paid more than her when she also held that position and performed equal work. (Id., ¶¶ 40, 41, 42.) Third, Plaintiff Barninger identified a specific male General Manager who was paid more than her when she also held that position and Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 10 of 14 11 performed equal work. (Id., ¶¶ 47, 48, 49.) In addition, Plaintiffs allege they were training at least two of these individuals at that time. (Id., ¶¶ 26, 27, 30, 31.) These are specific male comparators whose identities were not included in the publicly- filed Complaint out of respect for their privacy. Five Guys will certainly be entitled to learn their identities in the discovery process. In order to make out a prima facie claim under the Equal Pay Act, the plaintiff must show that “an employer pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 2228, 41 L. Ed. 2d 1 (1974). Plaintiffs have certainly met this burden. The cases on which Five Guys relies for the proposition that Plaintiffs must name these individual male comparators in their Complaint do not actually stand for that proposition2. Simply put, Plaintiffs have alleged the existence of specific male 2 Delprato v. Day Chevrolet Inc., 427 F. App'x 86, 87 (3d Cir. 2011) (affirming dismissal of pro se plaintiff’s amended complaint and noting that “DelPrato’s assertion in his Objections concerning his female co-worker does not involve pay or any other type of compensation by his former employer and thus does not implicate the Equal Pay Act.”). Collins v. Landmark Military Newspapers, Inc., No. CIV 206CV342, 2007 WL 2301549, at *14 (E.D. Va. Aug. 6, 2007) (Denying a motion for summary judgment and noting that plaintiff “states she was paid less than her comparators, and thereby establishes prong one of her prima facie case.”) Strag v. Bd. of Trustees, Craven Cmty. Coll., 55 F.3d 943 (4th Cir. 1995) (granting a motion for summary judgment and holding that the plaintiff had not Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 11 of 14 12 comparators in the Complaint who were paid more than Plaintiffs for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. In addition, Plaintiffs have adequately alleged that all Five Guys restaurants may be treated as a single establishment. At this motion to dismiss stage, Plaintiffs have sufficiently identified male comparators and stated a claim for violation of the Equal Pay Act. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the Court deny Defendant Five Guys Operations, LLC’s Motion to Dismiss Count One of Plaintiffs’ Complaint (Doc. 17). In the alternative, should the Court be persuaded by any argument in the Motion to Dismiss, Plaintiffs respectfully request leave to amend the Complaint pursuant to Federal Rule of Civil Procedure 15(a). identified a proper male comparator under the circumstances). Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 12 of 14 13 Dated September 12, 2016 Respectfully submitted, MCCARTHY WEISBERG CUMMINGS, P.C. By: /s/ Larry A. Weisberg Larry A. Weisberg (PA Bar 83410) Derrek W. Cummings (PA Bar 83286) 2041 Herr Street Harrisburg, PA 17103 Telephone: (717) 260-3854 Facsimile: (717) 233-8133 Email: lweisberg@mwcfirm.com dcummings@mwcfirm.com STUEVE SIEGEL HANSON LLP George A. Hanson (admitted pro hac vice) Alexander T. Ricke (admitted pro hac vice) 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 Email: hanson@stuevesiegel.com ricke@stuevesiegel.com ATTORNEYS FOR PLAINTIFFS AND THE PUTATIVE COLLECTIVE ACTION CLASS Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 13 of 14 14 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of September 2016, a copy of the foregoing Brief was filed using the Middle District of Pennsylvania’s ECF system, through which this document is available for viewing and downloading, causing a notice of electronic filing to be served upon the following counsel of record: Theodore A. Schroeder tschroeder@littler.com Emilie R. Hammerstein ehammerstein@littler.com LITTLER MENDELSON, P.C. 625 Liberty Avenue 26th Floor Pittsburgh, PA 15222 /s/ Larry A. Weisberg Larry A. Weisberg Case 1:16-cv-01221-SHR Document 23 Filed 09/12/16 Page 14 of 14 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 3298884 United States District Court, S.D. New York. Donna KASSMAN, et al., Plaintiffs, v. KPMG LLP, Defendant. No. 11 Civ. 03743(LGS). | Signed July 8, 2014. OPINION AND ORDER LORNA G. SCHOFIELD, District Judge. *1 Plaintiffs Donna Kassman, Linda O'Donnell, Sparkle Patterson, Jeanette Potter and Ashwini Vasudeva, on behalf of themselves and others similarly situated, bring this action against Defendant KPMG LLP alleging various forms of employment discrimination, including individual and Rule 23 class claims for violations of Title VII; individual and collective action claims for violations of the Fair Labor Standards Act (“FLSA”) as amended by the Equal Pay Act (“EPA”); individual and class claims for violations of the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”) and the New York Equal Pay Law (“NYEPL”); individual claims for violations of the Family and Medical Leave Act (“FMLA”); and an individual claim for a violation of 42 U.S.C. § 1981. Before the Court are two motions: (1) Plaintiffs' Motion for Conditional Certification and Authorization of Notice (“Motion for Conditional Certification”), and (2) Defendants' Rule 12(b)(1) Motion to Dismiss Plaintiffs' Rule 23 Class Claims in the Third Amended Complaint for Lack of Constitutional Standing (“Motion to Dismiss”). For the reasons discussed below, Plaintiffs' Motion to Certify is granted, and Defendant's Motion to Dismiss is granted in part and denied in part. I. Background A. Procedural Background Kassman filed her original Complaint in this action on June 2, 2011, and her Amended Complaint on June 6, 2011. On September 29, 2011, Kassman filed her Second Amended Complaint, which also named O'Donnell, Patterson, Potter and Vasudeva as Plaintiffs. Plaintiffs filed their Third Amended Complaint on January 6, 2012. On February 3, 2012, KPMG filed a Motion to Dismiss Certain Claims and Strike Class Claims as Contained in the Third Amended Complaint. One of Defendant's arguments, relying on Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), was that Plaintiffs lacked standing to pursue injunctive relief under Rule 23(b)(2) because they were no longer employed by KPMG. Judge Jesse Furman issued an Opinion and Order on February 7, 2013 (“Judge Furman's Opinion”), which left the majority of Plaintiffs' individual and class claims intact. Judge Furman held that the Rule 23 class claims survived because Plaintiffs sought reinstatement at KPMG. On May 13, 2013, Plaintiffs filed a Motion for Equitable Tolling of the Statute of Limitations for Absent Collective Action Members' Claims under the Equal Pay Act. At a hearing on August 1, 2013, the Court denied the motion without prejudice to renewal by future opt-in Plaintiffs. The Court explained that it would allow discovery and notice to be issued as if the motion had been granted. B. Facts Relevant to the Motions Before the Court This opinion assumes familiarity with the basic facts of this case, which are detailed in Judge Furman's Opinion. See Kassman v.. KPMG LLP, 925 F.Supp.2d 453, 457–59 (S.D.N.Y.2013). i. Motion for Conditional Certification *2 The facts are taken from the parties' submissions in connection with Plaintiffs' Motion for Conditional Certification. Defendant KPMG employs over 23,000 people in over 80 offices. KPMG divides its operations into Audit, Tax and Advisory functions, which are then further divided into specialized areas. The proposed collective consists of women employed in KPMG's Tax and Advisory functions in the positions of Associate, Senior Associate, Manager, Senior Manager/Director and Managing Director, which includes more than 7,000 women. As evidenced by KPMG's Career Snapshots and Job Descriptions, employees with the same job title have Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 1 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 substantially similar responsibilities and qualifications. These descriptions do not include every task an employee might perform, however, and state that additional qualifications may be required for specific specializations. KPMG's website states that the firm “aim[s] to make it easy for [its employees] to move around at KPMG —geographically, as well as between different job functions.” KPMG's Compensation Guidelines evince that compensation policies are set at high levels and applied across job titles, function groups and geographic locations. For example, KPMG has a firm-wide policy for awarding merit-based increases in compensation. Also, KPMG has a policy providing that compensation must be based on the firm's study of the market rate for each position in each geographic location. Additionally, KPMG has firm-wide salary bands, which establish uniform compensation ranges. Specific pay amounts are not dictated by these policies, but are determined by the partners in each of KPMG's offices based on factors specific to location and employee. Compensation is reduced for those employees on reduced schedules. Partners can set compensation outside the suggested ranges for a legitimate business reason. Nonetheless, firm policy provides that all employee compensation is ultimately decided by persons at the highest level of firm leadership, who “review compensation recommendations,” make “revisions” and “notify [lower level leadership] when all salary and compensation planning has been approved.” Named Plaintiffs Kassman, Patterson, O'Donnell and Vasudeva 1 were employed by KPMG as client service professionals in the Advisory and Tax practices. Plaintiffs allege that Defendant paid them and similarly-situated female employees less than their male counterparts for performing substantially equivalent work. Kassman was employed by KPMG in the New York metro area for over seventeen years. She started as a Tax Associate (known then as a Tax Specialist) and was promoted to Tax Senior Manager. Kassman received positive performance reviews from KPMG. Nevertheless, KPMG paid Kassman nearly $50,000 less per year than comparator John Montgomery, even though Kassman held a law degree and Montgomery did not. KPMG reduced Kassman's salary by $20,000 per year while she was on maternity leave, but did not reduce any male comparator's pay during this time. When Kassman asked her superior about her pay cut, he told her that she should consider her past salary a loan and that she did not need the money because she had “a nice engagement ring.” *3 Patterson was employed by KPMG in its Atlanta, Georgia office as a Tax Associate for approximately four years. Patterson received positive performance reviews and received a “Standing Ovation” award twice, which KPMG gives to employees who go “above and beyond” in their work. Patterson performed the same tasks as a Senior Associate, although she was never officially promoted. KPMG paid Patterson significantly less per year than male comparator Stephan Rabbitt, even though Patterson held a CPA certification and Rabbitt did not. O'Donnell was employed by KMPG at one of its international offices and at its Atlanta, Georgia office, where she was a Senior Associate in the Advisory function. O'Donnell was demoted upon her transfer to Atlanta, even though transferred male employees were not demoted. O'Donnell performed Manager-level tasks, but was never officially promoted. KPMG paid O'Donnell approximately $20,000 less per year than male comparator Krupal Mehta. Vasudeva was employed by KPMG in its Mountain View, California office as an Advisory Associate and Senior Associate for approximately five years. KPMG paid Vasudeva significantly less than male comparators Ryan Wood–Taylor and Bryan Dillon. Plaintiffs' preliminary expert analysis shows that nationwide pay disparities at KPMG attributable to gender are statistically significant at more than eleven standard deviations, meaning that the probability that KPMG's compensation could be gender neutral is less than one in one hundred million. This analysis shows that, controlling for gender-neutral variables, KPMG paid female employees in the Tax and Advisory practice groups, from 2008 through 2013, approximately 3% less than their male counterparts for doing equivalent work. ii. Motion to Dismiss The facts are taken from the parties' submissions in connection with Defendant's Motion to Dismiss and, as required on this motion, viewed in the light most favorable to the non-moving party. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 2 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 a. Kassman The Third Amended Complaint lists reinstatement in its Prayer for Relief. However, during her deposition on November 4, 2013, in response to the question: “But you're not seeking to be reinstated; are you?” Kassman responded, “No.” During this same deposition, Kassman also testified that she “did want to stay at KPMG,” but could not do so due to the discriminatory environment. She testified that in order to stay at KPMG, she was willing to “move offices,” “take[ ] a pay cut,” “take[ ] a different title” or be “in some kind of support role,” provided she would no longer be working with the people being abusive towards her. Additionally, she testified that leaving KPMG “wasn't [her] choice, it was KPMG's choice.” Two weeks later, via interrogatory, Kassman stated that “should the discriminatory conditions be satisfactorily remedied[,] ... reinstatement to the proper role Plaintiff would have held absent discrimination would be appropriate.” In her declaration submitted with the instant motion, Kassman declares that she is seeking reinstatement at KPMG, provided the discrimination she faced there would be abolished, and that when she answered “no” at her deposition it was because she “could not imagine going back to the same KPMG [she] left in 2010 and going back through the same discrimination and torment once again.” b. Patterson *4 Patterson worked at KPMG as an Associate in the Federal Tax and Executive Services (“IES”) service lines. In her positions in both Federal Tax and IES, Patterson prepared tax returns. Through her work, Patterson was knowledgeable about the rules for filing tax returns, including the rules for declaring a dependent. In June 2009, Patterson's significant other, Jacneil Baker, who is not related to her, moved in with her. Patterson listed Baker as her dependent nephew on her personal tax returns in 2009, 2010 and 2011. Patterson represented in these returns that Baker did not have any income during the years at issue, which was untrue. Patterson later filed amended returns to correct these misrepresentations. She attests to having made no similar errors or misrepresentations in her work at KPMG. KPMG has a “Code of Conduct” that requires all of its employees, among other things, to “comply[ ] with all applicable laws and regulations.” The “Code of Conduct” also states that any employee “may be subject to discipline, up to and including termination of employment” for, among other things, “violating laws, regulations, or KPMG policies.” KPMG also has an “Involuntary Termination of Employment” policy, which states in relevant part that “KPMG reserves the right to terminate an individual's employment with the firm ... due to ... misconduct.” Included in the listed examples of “misconduct” are “[v]iolation of any firm policy, rule, or code of conduct” and “[i]mmoral or indecent conduct, as well as conduct that results or could potentially result in embarrassment or other damage to the reputation and/or goodwill of the firm.” The National Managing Partner of KPMG's Tax division, Laura Newinski, testified that KPMG's “Code of Conduct” does not require termination for an employee who violates the law. However, Newinski also testified that according to the facts of Patterson's situation, she does “not believe there's any room for interpretation that termination and non-rehiring is the conclusion” and that she would be the one at KPMG to make that determination. Newinski further testified that she knew of only two instances, besides Patterson's, in which current or prospective KPMG tax employees engaged in untruthful conduct in connection with their personal tax returns, and in both instances, the employees' employment or employment offer was terminated. II. Standard of Review A. Motion for Conditional Certification “As part of the FLSA, the EPA utilizes the FLSA's enforcement mechanisms and employs its definitional provisions.” Anderson v. State Univ., 169 F.3d 117, 119 (2d Cir.1999), vacated on other grounds, 528 U.S. 1111 (2000). Section 216(b) of the FLSA provides that an action “may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). “Neither the FLSA nor its implementing regulations define the term ‘similarly situated.’ “ Cunningham v. Elec. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 3 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Data Sys. Corp., 754 F.Supp.2d 638, 643 (S.D.N.Y.2010) (internal quotation marks omitted). *5 “Certification” under the FLSA is simply “the district court's exercise of the discretionary power ... to facilitate the sending of notice to potential class members.” Myers v. Hertz Corp., 624 F.3d 537, 555 n. 10 (2d Cir.2010). Although the Second Circuit has never offered a definitive standard for the certification of collective actions under the FLSA, it has endorsed the two-step approach widely used by the district courts in this Circuit and by other circuit courts. See id. at 554–55 (“[T]he district courts of this Circuit appear to have coalesced around a two-step method, a method which ... we think is sensible”); see also Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260– 62 (11th Cir.2008); Sandoz v. Cingular Wireless LLC, 553 F .3d 913, 915 n. 2 (5th Cir.2008); Comer v. Wal–Mart Stores, Inc., 454 F.3d 544, 546–47 (6th Cir.2006). “The first step involves the court making an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA violation has occurred.” Myers, 624 F.3d at 555. To establish that the named plaintiffs are “similarly situated” to the potential opt- in plaintiffs in the first stage of the inquiry, the named plaintiffs must “make a ‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law.’ “ Id. (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)). “The modest factual showing cannot be satisfied simply by unsupported assertions, but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether similarly situated plaintiffs do in fact exist....” Id. (internal citation omitted) (internal quotation marks omitted); see also Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 368 (S.D.N.Y.2007) (describing plaintiff's burden as “very low” and “minimal”). At this procedural stage, “the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Cunningham, 754 F.Supp.2d at 644 (internal quotation marks omitted). “Once a court is satisfied that the first-stage inquiry has been satisfied, it conditionally certifies the class and orders notice to putative class members, who are given the opportunity to opt in.” Id. The second step, typically taken upon the completion of discovery, requires the court to determine, “on a fuller record, ... whether a so-called ‘collective action’ may go forward by determining whether the plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs.” Myers, 624 F.3d at 555. “The action may be ‘de-certified’ if the record reveals that they are not....” Id. B. Motion to Dismiss “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. “[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff, ... but jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal citation omitted) (internal quotation marks omitted) (first alteration in original). *6 “[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings[.]” LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir.1999). However, where the disputed facts determining jurisdiction are “intertwined with the merits ... the trial court should employ the standard applicable to a motion for summary judgment.” London v. Polishook, 189 F.3d 196, 198 (2d Cir.1999) (internal quotation marks omitted). “[T]he district court should dismiss such a claim for lack of jurisdiction only if there are no triable issues of fact.” Id. at 198–99. III. Discussion A. Motion for Conditional Certification Plaintiffs move for conditional certification of a collective action for their claims brought pursuant to the EPA and to authorize notice to be sent to potential members of the collective. This motion is granted. Plaintiffs have made a “modest factual showing” that they and the potential opt- Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 4 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 in plaintiffs are “similarly situated” and “together were victims of a common policy or plan that violated the law.” Specifically, Plaintiffs have submitted declarations detailing their personal experiences; documentary evidence of KPMG's firm-wide compensation policies and job descriptions; and statistical evidence of discrimination. 2 This is sufficient to satisfy Plaintiffs' burden at this stage of litigation. See Moore v. Publicis Groupe SA, No. 11 Civ. 1279, 2012 WL 2574742, at * 10–11 (S.D.N.Y. June 29, 2012) (granting a motion to conditionally certify a nationwide collective where the plaintiffs submitted evidence of centralized corporate policies regarding compensation and job responsibilities, as well as statistical evidence of unequal pay based on gender). Defendant argues that the named Plaintiffs are not proper representatives of the collective because their own EPA claims are deficient. At the conditional certification stage, when discovery is incomplete, however, “a court should not weigh the merits of the underlying claims in determining whether potential opt-in plaintiffs may be similarly situated.” Cunningham, 754 F.Supp.2d at 644 (internal quotation marks omitted). “The focus of [the] inquiry [during a motion for conditional certification] ... is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are ‘similarly situated’ ... with respect to their allegations that the law has been violated.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005). Next, Defendant argues that Plaintiffs have not shown that they are “similarly situated” to the proposed collective because the named Plaintiffs' experience is too limited in relation to the proposed collective in terms of geography and job function. This is incorrect. As discussed above, courts require only that plaintiffs make a “modest factual showing” that they and potential collective action members “were victims of a common policy or plan that violated the law.” Myers, 624 F.3d at 555 (internal quotation marks omitted). “Courts have found employees ‘similarly situated’ for purposes of the FLSA where they performed different job functions or worked at different locations, as long as they were subject to the same allegedly unlawful policies.” Diaz v. S & H Bondi's Dept. Store, No. 10 Civ. 7676, 2012 WL 137460, at *6 (S.D.N.Y. Jan. 18, 2012). *7 Conditional certification does not require named plaintiffs from each geographical area included in the collective. See, e.g., id. at *6 (holding that courts may authorize notice to employees at locations where named plaintiffs never worked if named plaintiffs alleged that the same pay policies applied to all of defendants' locations); Pendlebury v. Starbucks Coffee Co., No. 04– CV–80521, 2005 WL 84500, at *3 (S.D.Fla. Jan. 3, 2005) (certifying nationwide collective with two named plaintiffs from Florida); Leuthold v. Destination America, Inc., 224 F.R.D. 462, 465 (N.D.Cal.2004) (certifying nationwide collective with three named plaintiffs from California). “[I]t is not necessary for the purposes of conditional certification that the prospective class members all performed the same duties as the named plaintiffs.” Diaz, 2012 WL 137460, at *5 n. 6 (internal quotation marks omitted). “Plaintiff need not show that his position is or was identical to the putative class members' positions; a class may be certified under the FLSA if the named plaintiff can show that his position was or is similar to those of the absent class members.” Sanchez v. Sephora USA, Inc., No. 11–03396, 2012 WL 2945753, at *4 (N.D.Cal. July 18, 2012) (internal quotation marks omitted) (rejecting defendant's argument that conditional certification is inappropriate on the grounds that the potential plaintiffs' duties varied from store to store). Furthermore, courts “routinely grant conditional certification of multiple-job-title classes....” Cunningham, 754 F.Supp.2d at 651 (internal quotation marks omitted) (finding that “employees in a given job progression are similarly situated to each other”). The “similarly situated” requirement does not mean that plaintiffs must show that all members of the collective have “perfectly identical” job duties; “rather, plaintiffs need only show that they are similar.” Pippins v. KPMG LLP, No. 11 Civ. 0377, 2012 WL 19379, at *5 (S.D.N.Y. Jan. 3, 2012). Ultimately, the “proper inquiry” during conditional certification is whether the named plaintiffs and the other potential members of the proposed collective “are similarly situated with respect to their allegations that the law has been violated.” Diaz, 2012 WL 137460, at *5 (internal quotations omitted); see also Myers, 624 F.3d at 555. Other “factual variances that may exist between the plaintiff and the putative class do not defeat conditional class certification.” Lynch, 491 F.Supp.2d at 369; see also Iglesias–Mendoza v. La Belle Farm, Inc., Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 5 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 239 F.R.D. 363, 369 (S.D.N.Y.2007). “Such variances are more appropriately analyzed during the second- decertification-stage.” Pippins, 2012 WL 19379, at *5; see also Cunningham, 754 F.Supp.2d at 651; Sanchez, 2012 WL 2945753, at *4. Finally, Defendant argues that the proposed collective is not part of the same “establishment,” as is required by the EPA, because its members are not limited to employees at one physically distinct place of business. This argument fails. *8 The EPA prohibits an employer from paying wages “at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work....” 29 U.S.C. § 206(d)(1). The term “establishment” in this context “refers to a distinct physical place of business rather than to an entire business or ‘enterprise’ which may include several separate places of business.” 29 C.F.R. § 1620.9(a). However, “unusual circumstances may call for two or more distinct physical portions of a business enterprise being treated as a single establishment.” 29 C.F.R. § 1620.9(b). “For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and performed under similar working conditions.” Id. Courts identify “a widely followed standard recognizing that central control and administration of disparate job sites can support a finding of a single establishment for purposes of the EPA.” Mulhall v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir.1994) (citing Brennan v. Goose Creek Consol. Indep. Sch. Dist., 519 F.2d 53, 57 (5th Cir.1975)). “The hallmarks of this standard are centralized control of job descriptions, salary administration, and job assignments or functions.” Id. (holding that “[a] reasonable trier of fact could infer that because of centralized control ... a single establishment exist[ed] for purposes of the EPA”). Courts reason that “narrow construction of the word ‘establishment’ could make proof of discrimination more difficult, thus frustrating congressional intent .” Id. (internal quotation marks omitted). Here, Plaintiffs have presented sufficient evidence that KPMG's offices nationwide may be considered one establishment for the purposes of conditional certification under the EPA. Specifically, Plaintiffs have presented evidence that job responsibilities were generally the same across offices, compensation policies were firm- wide and ultimate compensation decisions were made by centralized leadership. Moreover, “there is limited authority that district courts must engage in the establishment analysis when considering the [conditional] certification of a collective action under the EPA.” Moore, 2012 WL 2574742, at *11 (citing cases in which the court conditionally certified EPA collectives including employees from geographically diverse offices without discussing the establishment issue). In sum, Defendant's arguments are more suited to a later, more demanding stage of the proceedings, such as a motion to decertify or for summary judgment. The “modest factual showing” required for conditional certification requires “a low standard of proof.” Myers v. Hertz Corp., 624 F.3d at 555. Accordingly, “[a]t this stage, Plaintiffs' assertions are sufficient, but remain vulnerable during a motion for de-certification.” Moore, 2012 WL 2574742, at * 11. *9 Plaintiffs' Motion for Conditional Certification is granted. Notice shall be issued to all female employees of KPMG who held any of the following positions— Associate, Senior Associate, Manager, Senior Manager/ Director and/or Managing Director—in either the Tax or Advisory practice groups from October 17, 2008, to the present. Those who held any of the relevant positions from October 30, 2010, to the present may opt-in to the collective action, pursuant to the EPA's statute of limitations. See 29 U.S.C. § 255(a). Additionally, those who held any of the relevant positions from October 17, 2008, through October 30, 2010, may move the Court for equitable tolling of the statute of limitations, pursuant to the Court's previous ruling. The notices shall include language explaining that it is illegal for employers to retaliate against employees for exercising their federally-protected rights. Because of the large number of potential opt-in plaintiffs and the need for certain of those plaintiffs to move the Court regarding tolling the statute of limitations, the opt-in period shall be 120 days. Potential plaintiffs may submit their opt-in by email, fax or regular mail. Plaintiffs have attached to their reply brief drafts of proposed notices. These drafts will be discussed at the upcoming status conference. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 6 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 B. Motion to Dismiss Kassman and Patterson are the only Plaintiffs asserting Rule 23 class claims in the Third Amended Complaint. Defendant moves to dismiss their Rule 23 class claims for lack of subject matter jurisdiction. This motion is denied as to Kassman, but granted as to Patterson. Plaintiffs previously stated that they would seek Rule 23(b)(2) or “hybrid” Rule 23(b)(2) and 23(b)(3) certification, both of which require that Plaintiffs seek injunctive relief. Rule 23(b) (2) certification is appropriate where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Defendant previously argued, relying on Dukes, 131 S.Ct. 2541, that Plaintiffs lacked standing to pursue relief under Rule 23(b)(2) because they were no longer employed by KPMG. Judge Furman's Opinion held that Kassman's and Patterson's statuses as former employees did not preclude them from having standing to seek injunctive and declaratory relief because Plaintiffs sought reinstatement at KPMG. See Kassman, 925 F.Supp.2d at 468. Defendant now argues that even under the holding of Judge Furman's Opinion, Kassman's and Patterson's Rule 23 class claims must be dismissed in light of admissions made during their respective depositions demonstrating that Kassman is not seeking reinstatement and Patterson is ineligible for reinstatement. Defendant characterizes its instant motion as a challenge to Kassman's and Patterson's standing, but Defendant is actually making a mootness argument. “While the standing doctrine evaluates a litigant's personal stake at the onset of a case ... the mootness doctrine ensures that the litigant's interest in the outcome continues throughout the life of the lawsuit.” Comer v. Cisneros, 37 F.3d 775, 797–98 (2d Cir.1994) (internal citation omitted) (internal quotation marks omitted). Standing is “assessed as of the time the lawsuit is brought.” Id. at 787. On the other hand, “[a] case can become moot at any stage of litigation.” Associated Gen. Contractors of Conn., Inc. v. City of New Haven, 41 F.3d 62, 65 (2d Cir.1994). *10 In the instant case, Judge Furman's Opinion has already determined that Kassman and Patterson had standing when the Third Amended Complaint was filed. See Kassman, 925 F.Supp.2d at 468. Therefore, Defendant's current challenge to the Court's subject matter jurisdiction over Kassman's and Patterson's Rule 23 claims will be evaluated on mootness grounds. “[T]he party seeking to have the case dismissed bears the burden of demonstrating mootness and that burden ‘is a heavy one.’ “ Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir.1991) (quoting County of L.A. v. Davis, 440 U.S. 625, 631 (1979)); see also Associated Gen. Contractors of Conn., Inc., 41 F.3d at 65 (“[T]he burden on the party alleging mootness is a heavy one.” (internal quotation marks omitted)). A party establishes mootness only by showing that “it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013) (emphasis added) (internal quotation marks omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. Thus, here, in order to demonstrate that Kassman's and Patterson's claims for injunctive relief are moot, Defendant must show, respectively, that at the time of class certification, it would be “impossible” for Kassman to be seeking reinstatement and it would be “impossible” for Patterson to be eligible for rehire. Defendant has not met this burden as to Kassman, but has met this burden as to Patterson. i. Kassman Defendant argues that Kassman's answer of “no” when asked at her deposition whether she was seeking reinstatement establishes as a matter of law that the Court lacks subject matter jurisdiction over Kassman's Rule 23 claims. This argument fails. Kassman's deposition testimony must be construed in the light most favorable to Kassman, the nonmoving party, and all reasonable inferences must be drawn in her favor. Kassman could have reasonably understood the question as asking whether she was seeking reinstatement at that time, under the current conditions at KPMG, and her response could reasonably be interpreted to mean that she was not seeking reinstatement in that narrow circumstance. Kassman's deposition as a whole makes clear that she wanted to remain at KPMG, but could not do so due to the discrimination she faced there and the fact that Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 7 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 the company would not accommodate her with a new assignment away from the discriminatory environment. The deposition testimony shows that Kassman was so committed to continuing her career at KPMG that she was even willing to take a pay cut or a demotion in order to remain with the firm provided that she would not be working with the people who were discriminating against her. Furthermore, both Kassman's interrogatory response and declaration make it clear that, if the discriminatory conditions at KPMG were to change, then she would want to be reinstated. This is consistent with her deposition. *11 Defendant argues that this subsequent evidence should be disregarded as “sham testimony,” citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969), which observed that “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” However, the Perma Research “principle does not apply if the deposition and the later sworn statement are not actually contradictory.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir.2000). “Thus, it does not apply where the later sworn assertion addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition.” Id. A court “should not disregard the [post-deposition] testimony because of an earlier account that was ambiguous, confusing, or simply incomplete.” Id. (internal quotation marks omitted) (alteration in original). Similarly, a court should consider “subsequent sworn testimony that amplifies or explains, but does not merely contradict ... prior testimony.” Id. (internal quotation marks omitted); see also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (holding that subsequent testimony could defeat summary judgment if a reasonable juror could conclude that, “assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless” be telling the truth in her later statement). In the present case, the declaration at issue does not definitively contradict the prior deposition. Instead, the declaration works to clarify and explain the deposition on an issue that was not thoroughly explored at the deposition and on which Kassman's answer was incomplete. In other words, assuming good faith on Kassman's part when she answered “no” at her deposition, she still could be telling the truth in her declaration. As Kassman explained, when she answered “no,” it was because she “could not imagine going back to the same KPMG [she] left in 2010 and going back through the same discrimination and torment once again,” not because she would not want to return to KPMG under any circumstances. Thus, Kassman's declaration will not be disregarded. Consequently, Defendant has not met its burden of establishing that it would be impossible for the Court to order injunctive relief to Kassman. Defendant's motion to dismiss Kassman's Rule 23 class claims is denied. ii. Patterson Patterson's admissions at her deposition that she lied on her personal tax returns make her ineligible for reinstatement and thus establish as a matter of law that the Court lacks subject matter jurisdiction over Patterson's Rule 23 claims. Reinstatement is not an appropriate remedy for a plaintiff whom “the employer would have terminated, and will terminate, in any event and upon lawful grounds.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362 (1995). “Where an employer seeks to rely upon after- acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. at 362–63. Here, Defendant has so established. *12 The evidence is undisputed that Patterson lied on her tax returns. KPMG's policies state that an individual's employment may be terminated for violating the law and for conduct that could result in embarrassment or other damage to the reputation of the firm. Plaintiffs argue that these policies leave room for interpretation on a case by case basis; however, Newinski, who makes decisions of this type for KPMG, testified that there is no room for interpretation in Patterson's case, as termination without the possibility of rehiring would be the only possible outcome for Patterson. Plaintiffs argue that Newinski's opinion on this matter was given during the course of litigation and cannot be relied on as unbiased. However, Newinski's statement is credible Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 8 of 48 Kassman v. KPMG LLP, Not Reported in F.Supp.3d (2014) 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 as a matter of common sense, and is corroborated by two prior instances in which KPMG found that an employee and a potential employee had lied to the IRS. KPMG terminated the employee and revoked the offer to hire the potential employee. Accordingly, there is no genuine issue of material fact that Patterson, who was employed as a Tax Associate, would have been fired when KPMG learned that she had lied on her own tax returns. See Wallace v. Dunn Const. Co., 62 F.3d 374, 380 (11th Cir.1995) (finding that there was no genuine issue of material fact that plaintiff would have been fired when the employer learned that she had lied on her job application about her prior conviction where company policy stated that “falsification of records is conduct for which the company will impose a penalty that may include termination[ ]” and the company testified that it would have fired the plaintiff upon learning of her lie). A reasonable jury would not order Patterson to be reinstated as a tax professional knowing that she had lied on her tax returns. Defendant therefore has met its burden of establishing that it would be impossible for the Court to order injunctive relief to Patterson. Accordingly, Defendant's Motion to Dismiss Patterson's Class 23 claims is granted. IV. Conclusion For the reasons discussed above, Plaintiffs' Motion to Certify is GRANTED, and Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Clerk of Court is directed to close the motions at docket numbers 109 and 144. SO ORDERED. All Citations Not Reported in F.Supp.3d, 2014 WL 3298884, 123 Fair Empl.Prac.Cas. (BNA) 1294, 98 Empl. Prac. Dec. P 45,112 Footnotes 1 Potter does not bring claims under the EPA, as her claims would be time-barred. 2 Defendant argues that Plaintiffs' expert analysis is facially deficient and should be disregarded because it fails to control for certain variables. However, “defendant's attacks on plaintiffs' ... evidence are premature at the notice stage.” In re Penthouse Exec. Club Compensation Litig., No. 10 Civ. 1145, 2010 WL 4340255, at *2 (S.D.N.Y. Oct. 27, 2010) (internal quotation marks omitted). “[A]rguments about credibility or the weight of the evidence ... are out of place in a conditional certification motion.” Spencer v. No Parking Today, Inc., No. 12 Civ. 6323, 2013 WL 1040052, at *5 n. 16 (S.D.N.Y. March 15, 2013) (first alteration in original) (internal quotation marks omitted). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 9 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Pelayo v. Platinum Limousine Services, Inc., D.Hawai'i, December 30, 2015 2015 WL 8477918 United States District Court, N.D. California, San Jose Division. Lynne Coates, Plaintiff, v. Farmers Group, Inc., et al., Defendants. Case No. 15-CV-01913-LHK | Signed 12/09/2015 Attorneys and Law Firms Jennie Lee Anderson, Andrus Anderson LLP, San Francisco, CA, Lori J. Costanzo, Costanzo Law Firm, San Jose, CA, Lori Erin Andrus, Andrus Anderson LLP, San Francisco, CA, for Plaintiff. Nancy L. Abell, Heather Ann Morgan, Valerie Margaret Marek, Paul Hastings LLP, Los Angeles, CA, Meg Kochuba, Neal D. Mollen, Paul Hastings LLP, Washington, DC, Paul Hastings LLP, for Defendant. ORDER GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZING NOTICE Re: Dkt. 56 LUCY H. KOH, United States District Judge *1 Plaintiff Lynne Coates (“Coates” or “Plaintiff”) and opt-in plaintiffs Sandra Carter (“Carter”), Chiquita Hartman (“Hartman”), Michele Morgan (“Morgan”), Serena Neves (“Neves”), Keever Rhodes (“Rhodes”), Angela Storey (“Storey”), Stephanie Torigian (“Torigian”), and Karen Wasson (“Wasson”) bring this putative class and collective action against Defendants Farmers Group, Inc., Farmers Insurance Exchange, and Farmers Insurance Company, Inc. (collectively, “Defendants”) for alleged violations of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), and other federal and state laws. ECF No. 1 (“Compl.”). Before the Court is Coates's motion to conditionally certify an EPA collective action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). ECF No. 56 (“Mot.”). Having considered the parties' arguments, the relevant law, and the record in this case, the Court GRANTS Coates's motion for conditional collective action certification, and AUTHORIZES notice to potential similarly situated class members. I. BACKGROUND A. Factual Background 1. Allegations in the Complaint and Evidence Submitted by Both Parties Defendants, along with additional subsidiaries and affiliates not named in this action, comprise the nation's third largest personal property and casualty insurance company. Compl. ¶¶ 1, 6-10. Defendants' Claims Litigation Department employs approximately 500 attorneys in over forty Branch Legal Offices nationwide to defend lawsuits brought against Defendants' insureds. ECF No. 57 (Declaration of Lori E. Andrus, or “Andrus Decl.”) ¶ 2; 1 id. Ex. M; id. Ex. L. Named Plaintiff Coates worked in the Claims Litigation Department from 1993 to 1998, and again from 2010 to 2014, in the San Jose Branch Legal Office. ECF No. 56-1 (Declaration of Lynne Coates, or “Coates Decl.”) ¶ 4; ECF No. 57-1 (Deposition of Lynne Coates, or “Coates Depo.”) pp. 21, 340. The eight opt-in plaintiffs are all female attorneys who have worked in the Claims Litigation Department. See Andrus Decl. ¶¶ 8-14; ECF No. 68-1 (Reply Declaration of Lori Andrus, or “Andrus Reply Decl.”) ¶¶ 6-8. The complaint alleges that Defendants paid the female attorneys in the Claims Litigation Department less than their male counterparts, even though the female attorneys performed the same or substantially equal work to the male attorneys. Compl. ¶ 2. Specifically, Plaintiff Coates alleges that she was hired as a full-time attorney on April 1, 2011 at salary grade 37 and $90,000 per year. Id. ¶ 20. Coates received positive performance reviews, and her salary increased incrementally, to $99,634.08 on April 1, 2014. Id. ¶¶ 23-29. However, in 2014, Coates learned that her law partner Andy Lauderdale (“Lauderdale”)—who had been practicing law for one year less than Coates Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 10 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 —was earning $185,00 compared to Coates's $99,634.08. Coates Decl. ¶¶ 13, 18; Compl. ¶ 30(d). According to Coates, she and Lauderdale “shared a common core of tasks” and “the same responsibilities...in many large-high- exposure cases that they worked on together.” Compl. ¶ 22. According to Lauderdale, Coates did “outstanding work” on their cases. Andrus Decl. Ex. MM. *2 Coates also identifies Dan Schaar (“Schaar”) as a higher paid, but less experienced, male attorney. Schaar was hired by Defendants in early 2012 at a salary of $85,000. Id. ¶ 30; Coates Decl. ¶ 15. Schaar had been a licensed attorney for only three years, and lacked prior insurance defense experience. Coates Decl. ¶ 15. By contrast, when Coates was hired in 2010, at $90,000, she had been licensed for 18 years and had five and a half years handling insurance defense matters, including trials. Id.; Compl. ¶ 20. By the time Schaar stopped working for Defendants in 2014, he was earning $102,000 per year— $3,000 more than Coates. Coates Decl. ¶ 15. Additionally, Coates points to Jeff Atterbury, who had no insurance defense experience when he was hired by Defendants in June 2012, also at $85,000. Coates Decl. ¶ 15. Based on these three comparators, Coates asserts that she received unequal pay for doing substantially equal work in violation of the EPA. Id. Coates contends that her unequal pay is the result of Defendants' discriminatory policies on compensation, assignment of cases, promotion, and performance evaluation. Id. ¶ 63; Mot. at 1-2. Coates alleges that the putative collective action members are similarly situated to Coates with respect to Coates's EPA claim because the class members “(a) have substantially similar job classifications, job functions, job titles, job descriptions, and/or job duties; and (b) are all subject to [Defendants'] common and centralized compensation policies, procedures and practices resulting in unequal pay based on sex.” Compl. ¶ 63. To support this claim, Coates submitted the following evidence with the instant motion: (1) declarations of Coates and three opt-in plaintiffs; (2) deposition testimony from Coates, three opt-in plaintiffs, and four current attorney- employees of Defendants; (3) research publications, academic articles, and statistics on the employment and earnings of women in America; (4) Coates's contracts and earnings statement; (5) various policies and procedures of Defendants, including on attorney competencies, compensation management, performance management, and case handling; (6) job postings for employment as an attorney with Defendants; (7) job profiles for attorney positions in the Claims Litigation Department; (8) emails and other documents indicating Coates's satisfactory job performance; and (9) performance and compensation overviews for Coates, Lauderdale, and Schaar. ECF Nos. 57, 68. In opposition, Defendants submitted (1) testimony and exhibits from the depositions of Coates and three opt- in plaintiffs; (2) performance reviews for Coates and Lauderdale; (3) the high exposure attorney (or “HEAT” attorney) profile; and (4) 10 declarations from attorneys currently working for Defendants. ECF No. 60. 2. Organization of Defendants' Claims Litigation Department Both parties have submitted evidence regarding the jobs of attorneys in the Claims Litigation Department. As relevant to the proposed class definition, Defendants organize the attorneys in the Claims Litigation Department into the following job titles and salary grades: attorney (grade 35), workers' compensation attorney (grade 35), associate trial attorney (grade 36), trial attorney (grade 37), senior trial attorney (grade 38), senior workers' compensation attorney (grade 38), specialty trial attorney (grade 39), supervising attorney (grade 39), supervising workers' compensation attorney (grade 39), high exposure attorney (grade 40), and managing attorney (grade 40). See Andrus Decl. Exs. V-CC. Each Branch Legal Office is run by a Managing Attorney and includes varying numbers of attorneys from other job titles and salary grades. ECF No. 60-38 (Declaration of Craig Hartsuyker, or “Hartsuyker Decl.”) ¶ 11. Managing Attorneys are overseen by Divisional Attorneys (92% of whom were male during the class period), who are in turn overseen by the Head of Claims Litigation (also male). Andrus Decl. ¶ 4; id. Ex. III; Mot. at 5. Jobs are assigned to salary grades based on the results of the job evaluation process, which “is a systematic approach to measuring the various skills and abilities required for a job and the responsibility level the job carries” by analyzing the “current duties and responsibilities” of a position. Andrus Decl. Ex. NN (Human Resources Policy Manual); see also id. Ex. EE (noting that job analysis is a “method to describe what an employee at each salary grade does,” and that the Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 11 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 “end result” is “a job content profile that outlines the job by content area”). Thus, regardless of geography, the attorneys within a job title are expected to have similar “duties and responsibilities.” See Andrus Decl. Ex. NN; id. Ex. EE (reporting results of 2013 survey that “Job tasks within same salary grades are uniform”); id. Ex. C (Deposition of Sandra Delrivo Carter, or “Carter Depo.”) p. 357 (“[T]here's the salary grades and, you know, that defines what type of work you're supposed to get.”); id. Exs. V-CC (attorney profiles, which indicate that attorneys within a job title are expected to perform the same duties); Andrus Reply Decl. Exs. X-Y (same). But see ECF No. 60-47 (Declaration of John Buratti) ¶¶ 12-15 (explaining personal injury protection attorneys are specialized and not expected to do the same number of trials as other attorneys). *3 Additionally, there is evidence that attorneys with different job titles have substantially identical duties. For example, attorneys at salary grades [redacted text] perform the same core tasks and are expected to have the same skills and knowledge (for example, active listening, critical thinking, and persuasion). See Andrus Reply Decl. Exs. M-N (attorneys across grades [redacted text] spend similar amounts of time on the same tasks); see also Andrus Decl. Ex. EE (a 2014 job-task analysis by Defendants of salary grades [redacted text] indicated that the tasks, knowledge, skills, and abilities of attorneys in salary grades [redacted text] had “little distinction” beyond the complexity of the cases handled). Coates asserts that all Claims Litigation Department attorneys, across the nation and across job titles, perform “substantially similar job duties,” including: “reviewing and responding to complaints, sending out and responding to discovery, taking depositions, making court appearances, attending mediations, handling arbitrations, meeting with clients and Farmers' claims representatives, participating in roundtables with supervisors and claims representatives, trying cases, and settling cases.” Coates Decl. ¶ 6; ECF No. 56-2 (Declaration of Sandra Carter, or “Carter Decl.”) ¶ 6; see also ECF No. 56-3 (Declaration of Keever Rhodes, or “Rhodes Decl.”) ¶ 6; ECF No. 56-4 (Declaration of Angela Storey, or “Storey Decl.”) ¶ 6. But see Andrus Decl. Ex. DD (indicating that cases vary in complexity across salary grades). Additionally, Coates testified that “[t]here was a routine way that files are...handled within the office, and everyone followed the guideline that were given to us.” Coates Depo. p. 167; see also Coates Decl. ¶ 7 (“Farmers' Claims Litigation is a highly regimented business operation and adherence to detailed written policies on a wide range of tasks is expected and enforced.”); Carter Decl. ¶ 7 (same); Rhodes Decl. ¶ 7 (same); Storey Decl. ¶ 7 (same). Coates points to various guidelines and forms— apparently applicable to all job titles—that govern how to handle a case. See Andrus Decl. Ex. OO (Litigated Case Management Guidelines); id. Exs. PP-TT (standardized case handling forms); see also Andrus Decl. Ex. C (Deposition of Christina Sanabria) p. 78-79 (noting there are guidelines that provide a framework for how to handle cases); Carter Depo. p. 355 (“Well, like when they set out litigation guidelines...it's not just an L.A. issue or a Long Beach issue. It's the claims litigation, so there's claims litigation processes that to my understanding apply to everybody.”). But see Andrus Decl. Ex. VV (case management guidelines for low-exposure claims). *4 Defendants' “compensation management program” applies to the aforementioned job titles and salary grades. Andrus Decl. Ex. NN; see also Andrus Reply Decl. Ex. K (discussing compensation management for “all” states and “all” offices); Coates Decl. ¶ 8 (“Throughout the country, all Farmers' Claims Litigation attorneys are subject to the same common and uniform compensation policies and practices.”). Each salary grade is assigned a range of possible salaries for the associated job. Andrus Decl. Ex. NN. Within that range, pay is set by the Managing Attorney of each Branch Legal Office, subject to discussions with and approval by higher management. Hartsuyker Decl. ¶ 11(f)-12; ECF No. 60-39 (Declaration of Edward Hoagland, Jr., or “Hoagland Decl.”) ¶ 10; ECF No. 60-40 (Declaration of Mark Miller, or “Miller Decl.”) ¶ 15 (“Within the salary grade range applicable to the position we are filling, we also determine the incoming attorney's starting pay.”); Coates Decl. ¶ 9 (“Final-decision making authority relating to Claims Litigation attorneys' compensation belongs to a small group, consisting only of men, who work at or above the Division Attorney level.”). Managing attorneys also determine the annual pay raises for the attorneys within the Branch Legal Offices, subject to an allocation budget and approval by higher management. See, e.g., Hartsuyker Decl. ¶ 27; Miller Decl. ¶ 16 (noting that percentage increases are set “within our assigned budget” and “within the constraints of the salary grade system”). [redacted text] Andrus Reply Decl. Ex. K. Managers Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 12 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 are cautioned not to [redacted text] that govern merit increases. Id. All supervisors follow the same performance evaluation procedure. See Andrus Decl. Exs. BBB, CCC (explaining mid-year and year-end performance review process); Coates Decl. ¶ 11 (“Farmers' performance review policies and practices are uniform nationwide....The same forms are used nationwide.”). The performance evaluation system uses [redacted text] to measure performance. Andrus Decl. Exs. NN, EEE, FFF. Managers are encouraged to assign performance ratings according to a [redacted text], and all ratings are then calibrated according to a [redacted text]. Andrus Reply Decl. Exs. K, Q; see also Hoagland Decl. ¶ 11 (noting calibration meeting is “to ensure that we collectively are using a common judgment scale and applying that scale fairly across the business”). B. Procedural History and the Instant Motion On April 29, 2015, Plaintiff Coates filed the complaint, which asserts six causes of action against Defendants, including violations of the EPA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and violations of various California state laws. Compl. ¶¶ 109-175. Coates seeks to represent a nationwide collective action class for the EPA claim; a nationwide class under Federal Rule of Civil Procedure 23 for the Title VII claim; and a California class for the California claims. Id. On October 15, 2015, Coates filed the instant motion for conditional certification of the EPA collective action, which would permit court-authorized notice to be sent to potential opt-in plaintiffs. ECF No. 56. Coates seeks to certify the following class: Women employed by Farmers Group, Inc., Farmers Insurance Exchange, or Farmers Insurance Company, Inc. (“Farmers”) in Claims Litigation at any time since June 8, 2012 in one or more of the following positions: attorney, workers compensation attorney, associate trial attorney, trial attorney, senior trial attorney, senior workers compensation attorney, specialty trial attorney, supervising attorney, supervising workers compensation attorney, HEAT attorney, or managing attorney (the “Class” or “Class Members”). The Class excludes individuals working in Farmers Legal Business Administration (formerly known as “Claims Legal Services Management”). ECF No. 69 (“Revised Proposed Order”). 2 Coates seeks an order (1) conditionally certifying the proposed EPA class; (2) requiring Defendants to produce the names and contact information of all potential collective action members; and (3) authorizing notice of the lawsuit. Id. Defendants opposed the motion on November 6, 2015. ECF No. 60 (“Opp.”). Coates replied on November 24, 2015. ECF No. 68. *5 Although Coates does not offer an estimate of the number of potential class members, it appears that there is a maximum of 300 individuals nationwide who may fall within the proposed class. Mot. at 4 n.5; Andrus Decl. ¶ 2. Between June 12, 2015 and June 17, 2015, three plaintiffs opted in to the putative EPA collective action: Storey, Rhodes, and Carter. ECF Nos. 15-17. On October 15, 2015, five additional plaintiffs opted in to the collective action: Morgan, Neves, Torigian, Wasson, and Hartman. ECF Nos. 40-44. Three more plaintiffs opted in after the motion for collective action certification was filed: (1) Celeste Stokes, on October 16, 2015, ECF No. 59; (2) Kim Carlton, on November 10, 2015, ECF No. 63; and (3) Julia Vohl Islas, on December 8, 2015, ECF No. 75. II. LEGAL STANDARD The EPA is an amendment to the FLSA, and therefore incorporates the FLSA's enforcement and collective action provisions. See Wellens v. Daiichi, Sankyo, Inc., 2014 WL 2126877, at *1 (N.D. Cal. May 22, 2014) (citing Anderson v. State Univ. of N.Y., 169 F.3d 117, 119 (2d Cir. 1999), vacated on other grounds, 528 U.S. 111 (2000)). Under the FLSA, an employee may bring a collective action on behalf of other “similarly situated” employees. 29 U.S.C. § 216(b). In contrast to class actions pursuant to Rule 23 of the Federal Rules of Civil Procedure, potential members of a collective action under the FLSA must “opt in” to the suit by filing a written consent with the court in order to benefit from and be bound by a judgment. Centurioni v. City & Cnty. of San Francisco, No. 07-01016, 2008 WL 295096, at *1 (N.D. Cal. Feb. 1, 2008); see also Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 13 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). Employees who do not opt in are not bound by a judgment and may subsequently bring their own action. Centurioni, 2008 WL 295096, at *1. Determining whether a collective action is appropriate is within the discretion of the district court. See Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). The plaintiff bears the burden to show that the plaintiff and the proposed class members are “similarly situated.” Id. The FLSA does not define the term “similarly situated,” nor has the Ninth Circuit defined it. Id. Although various approaches have been taken to determine whether plaintiffs are “similarly situated,” courts in this circuit have used an ad hoc, two-step approach. 3 See id. at 467 (“The court proceeds under the two-tiered analysis, given that the majority of courts have adopted it.”); see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (discussing three different approaches district courts have used to determine whether potential plaintiffs are “similarly situated” and finding that the ad hoc approach is arguably the best of the three approaches); Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012) (noting that “conditional certification” involves the exercise of the district court's “discretionary power, upheld in Hoffman- La Roche Inc. v. Sperling, 493 U.S. 165 (1989), to facilitate the sending of notice to potential class members,” and approving ad hoc approach). *6 Under the two-tiered approach, the court first makes an initial “notice stage” determination of whether potential opt-in plaintiffs exist who are similarly situated to the representative plaintiffs, determining whether a collective action should be certified for the purpose of sending notice of the action to potential class members. 4 See, e.g., Thiessen, 267 F.3d at 1102; Wellens, 2014 WL 2126877, at *1 (“The question is essentially whether there are potentially similarly-situated class members who would benefit from receiving notice at this stage of the pendency of this action as to all defendants.”). For conditional certification at this notice stage, the court requires little more than substantial allegations, supported by declarations or discovery, that “the putative class members were together the victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102; see also Myers, 624 F.3d at 555 (noting plaintiffs must make a “modest factual showing”);Morton v. Valley Farm Transport, Inc., No. C-06-2933-SI, 2007 WL 1113999, at *2 (N.D. Cal. Apr. 13, 2007) (describing burden as “not heavy” and requiring plaintiffs to merely show a “reasonable basis for their claim of class-wide” conduct (internal quotation marks and citation omitted)); Stanfield v. First NLC Fin. Serv., LLC, No. C-06-3892- SBA, 2006 WL 3190527, at *2 (N.D. Cal. Nov. 1, 2006) (holding that the plaintiffs simply “must be generally comparable to those they seek to represent”). The standard for certification at this stage is a “fairly lenient” one that typically results in certification. Wynn v. Nat'l Broadcasting Co., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002). Once discovery is complete, and the case is ready to be tried, the party opposing class certification may move to decertify the class. Leuthold, 224 F.R.D. at 467. “[T]he Court then determines the propriety and scope of the collective action using a stricter standard.” Stanfield, 2006 WL 3190527, *2. At that point, “the court may decertify the class and dismiss the opt-in plaintiffs without prejudice.” Leuthold, 224 F.R.D. at 467. It is at this second stage that the Court makes a factual determination about whether the opt-in plaintiffs are actually similarly situated, by weighing such factors as: “(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations.” Id. (citingThiessen, 267 F.3d at 1103). Notably, collective actions under the FLSA are not subject to the requirements of Rule 23 of the Federal Rules of Civil Procedure for certification of a class action. Thiessen, 267 F.3d at 1105. Thus, even at the second stage, “[t]he requisite showing of similarity of claims under the FLSA is considerably less stringent than the requisite showing under Rule 23 of the Federal Rules of Civil Procedure. All that need be shown by the plaintiff is that some identifiable factual or legal nexus binds together the various claims of the class members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA.” Hill v. R+L Carriers, Inc., 690 F. Supp. 2d 1001, 1009 (N.D. Cal. 2010) (quoting Wertheim v. Arizona, No. CIV 92-453 PHX RCB, 1993 WL 603553, at *1 (D. Ariz. Sept. 30, 1993)). Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 14 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 III. DISCUSSION A. The Notice-Stage Standard Applies Plaintiffs argue that the Court should apply the more lenient first-step analysis. Mot. at 17-21. By contrast, Defendants argue that a more searching “intermediate” inquiry should be applied, given the discovery that has already taken place in this case. Opp. at 16-17. In support, Defendants point to the discovery schedule, which permitted Defendants to depose Plaintiff Coates and three opt-in plaintiffs before the briefing for the instant motion, and required Defendants to produce all documents relevant to conditional class certification prior to those depositions. Opp. at 16; see also ECF No. 30 (case management order setting forth discovery schedule). The case schedule also called for “any of Defendants' witnesses related to conditional class certification” to be deposed prior to the class certification briefing. ECF No. 30. *7 Several courts have embraced Defendants' argument. The principle underlying these opinions appears to be that, if the reason for the “lenient standard” at the notice stage is the minimal amount of evidence typically available at that time, the lenient standard does not apply when evidence is available. Thus, four cases cited by Defendants hold that an “intermediate” or heightened standard applies when discovery has taken place on whether similarly situated plaintiffs may exist. See Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 822 (N.D. Ohio 2011) (finding that, because the parties have conducted limited discovery on the collective action claims, “it is appropriate to require Plaintiffs to make a modest 'plus' factual showing that there is a group of potentially similarly situated plaintiffs that may be discovered by sending opt-in notices”); McClean v. Health Sys., Inc., No. 11-03037-CV-S-DGK, 2011 WL 6153091, at *4 (W.D. Mo. Dec. 12, 2011) (applying intermediate standard from Creely after discovery commenced); Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497-98 (D.N.J. 2000) (using “stricter standard” when 100 potential plaintiffs had already opted in); Ray v. Motel 6 Operating, Ltd. P'ship, No. 3-95-828, 1996 WL 938231, at *4 (D. Minn. Mar. 18, 1996) (rejecting need for additional discovery when “the facts before the Court are extensive”). However, “[c]ourts in this Circuit, including this Court, routinely reject defendants' requests to apply heightened scrutiny before the close of discovery and hold that the first-stage analysis applies until the close of discovery.” Benedict v. Hewlett-Packard Co., No. 13-CV-00119-LHK, 2014 WL 587135, at *7 (N.D. Cal. Feb. 13, 2014); see also, e.g., Villa v. United Site Servs. of Cal, Inc., No. 5:12-CV-00318-LHK, 2012 WL 5503550, *13 (N.D. Cal. Nov. 13, 2012) (“In this case, discovery is still ongoing; fact discovery does not close until April 11, 2013. Accordingly, the Court applies the lower, notice- stage standard for conditional certification.”); Guifu Li v. A Perfect Franchise, Inc., 5:10-CV-01189-LHK, 2011 WL 4635198, *4 (N.D. Cal. Oct. 5, 2011) (holding that although parties had already engaged in “significant discovery,” first-stage analysis was appropriate because discovery was still ongoing and “[i]t is likely that the Plaintiffs have not yet presented a complete factual record for the Court to analyze”); Hill, 690 F. Supp. 2d at 1009 (“The second determination is made at the conclusion of discovery....”); Kress, 263 F.R.D. at 629 (“Courts within this circuit...refuse to depart from the notice- stage analysis prior to the close of discovery.”); Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124. 1127-28 (N.D. Cal. 2009) (declining to apply second-stage review even though “volumes of paper have been produced and several witnesses deposed” because to apply a different standard would “be contrary to the broad remedial policies underlying the FLSA”); Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. Apr. 19, 2006) (noting that courts sometimes bypass the notice stage analysis when “discovery is complete”); Rees v. Souza's Milk Transp., Co., No. CVF0500297, 2006 WL 738987, at *3 (E.D. Cal. Mar. 22, 2006) (“Here, the case is more at the 'notice' stage and not at the second stage....Discovery has been limited to the issue of class certification. Discovery on the merits is not complete and the case is not ready for trial.”); Leuthold, 224 F.R.D. at 467-68 (applying first-stage standard although “extensive discovery has already taken place,” because discovery was not complete). This Court is persuaded by the rationale of the majority of district courts within this Circuit that a heightened standard is not warranted in the instant case, where discovery is not near completion and it appears that no formal solicitation has been sent to potential class members. As explained by Northern District of California U.S. District Judge Vaughn Walker, skipping to the second-stage standard not only requires the court to evaluate an incomplete factual record—it interferes with the future completion of that record. Leuthold, 224 F.R.D. at 467-68. “The number and type of plaintiffs Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 15 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 who choose to opt into the class may affect the court's second tier inquiry regarding the disparate factual and employment situations of the opt-in plaintiffs....” Id. at 467-68. Additionally, separate from the risk of an incomplete factual record, “[b]ypassing the notice- stage altogether...might deprive some plaintiffs of a meaningful opportunity to participate.” Id. Measured against these dangers, delaying the second stage analysis risks little harm to defendant, who will be free to move for decertification “once the factual record has been finalized and the time period for opting in has expired.” Id. Accordingly, the Court finds that the notice-stage standard applies in this case. Thus, the question that the Court faces is whether similarly situated plaintiffs exist, such that the Court should authorize notice to potential plaintiffs. See Morgan, 551 F.3d at 1260; see also Myers, 624 F.3d at 555. After discovery is complete, Defendants can move for decertification, and the Court will then apply the heightened second-stage review. *8 In considering whether the lenient notice-stage standard has been met in a given case, courts bear in mind two evidentiary issues. First, a plaintiff need not submit a large number of declarations or affidavits to make the requisite factual showing that class members exist who are similarly situated to the plaintiff. A handful of declarations may suffice. See, e.g., Gilbert v. Citigroup, Inc., No. 08-0385 SC, 2009 WL 424320, at *2 (N.D. Cal. Feb. 18, 2009) (finding standard met based on declarations from plaintiff and four other individuals); Escobar v. Whiteside Construction Corp., No. C 08-01120 WHA, 2008 WL 3915715, at *3-4 (N.D. Cal. Aug. 21, 2008) (finding standard met based on declarations from three plaintiffs); Leuthold, 224 F.R.D. at 468-69 (finding standard met based on affidavits from three proposed lead plaintiffs). Second, the “fact that a defendant submits competing declarations will not as a general rule preclude conditional certification.” See Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 838 (N.D. Cal. 2010) (citation omitted). Competing declarations simply create a “he-said-she-said situation.” Escobar, 2008 WL 3915715, at *4. Thus, “[i]t may be true that the [defendants'] evidence will later negate [the plaintiff's] claims,” but that should not bar conditional certification at the first stage. Id. B. “Similarly Situated” Defendants contend that, even under a lenient standard, Coates has failed to demonstrate that she and the opt- in plaintiffs are “similarly situated” to the proposed collective action members. First, Defendants argue that Plaintiffs misunderstand the applicable legal standard because, Defendants say, the phrase “similarly situated” must be interpreted differently for EPA collective actions compared to other FLSA collective actions. Opp. at 10-13. Second, Defendants assert that various differences between the job responsibilities of the putative collective action members mean that the class members are not “similarly situated.” Id. at 13-25. The Court first discusses the standard for showing that proposed class members are “similarly situated” in EPA cases, and then applies that standard to the instant case. 1. Legal Standard Plaintiff moves to conditionally certify an EPA collective action pursuant to the FLSA, 29 U.S.C. § 216(b). Defendants argue that the phrase “similarly situated” in § 216(b) must be interpreted differently for EPA collective actions compared to other FLSA collective actions. Opp. at 10-13. In order to establish an EPA claim, a female plaintiff must show that the employer pays a male employee more “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). Case law has described this requirement as the “substantially equal” work requirement. See, e.g., E.E.O.C. v. Port Auth. of N.Y. & New Jersey, 768 F.3d 247, 255 (2d Cir. 2014). Defendants argue that to be “similarly situated” for an EPA collective action pursuant to § 216(b), Coates and the opt-in plaintiffs must show that they performed “substantially equal” or “virtually identical” work to each other and the other proposed class members. Opp. at 5, 10-13. Otherwise, Defendants assert, each class member will have to offer individualized evidence of a male comparator to show an EPA violation, which makes the class unmanageable and undermines the benefits of a collective action. Id. The Court finds no basis to adopt Defendants' “substantially equal” work standard as a measure of when an EPA class is “similarly situated,” either as a matter of statutory interpretation or due to prudential considerations such as manageability. First, Defendants Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 16 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 fail to point to anything in the text of the FLSA or the EPA —or any precedent—that suggests that “substantially equal” work and “similarly situated” are interpreted in the same manner. Rather, these two standards govern two different relationships and serve two different purposes. To show an EPA violation, a female plaintiff does not need to show that she performs “substantially equal” work to other female employees. Rather, a female plaintiff must show that she performs “substantially equal” work to a higher-paid male comparator. E.E.O.C., 768 F.3d at 255. Thus, the focus of the “substantially equal” inquiry is on the relationship between the female employee and the male comparator. See id. *9 By contrast, the focus of the “similarly situated” inquiry pursuant to § 216(b) is the relationship between the plaintiff and proposed class members, and whether the proposed class members are similarly situated “with respect to their EPA allegations.” Wellens, 2014 WL 2126877, at *5. Thus, courts have found proposed classes to be “similarly situated” pursuant to § 216(b) when the plaintiff shows that (1) the plaintiff and the proposed class members were victims of the same policy, and (2) the plaintiff and the proposed class members may be able to assert EPA claims against the defendant based on that policy. Id. (conditionally certifying an EPA class when the plaintiffs claimed that they were subjected to a policy to pay women less in violation of the EPA);Earl v. Norfolk State Univ., Civil No.: 2:13CV148, 2014 WL 6608769, at *6 (E.D. Va. Nov. 18, 2014) (“To the extent that Plaintiff alleges such policy violated the EPA, assuming the truth of such allegations, other male teaching faculty subject to such policy are similarly situated to Plaintiff because those faculty might also assert EPA claims against NSU based on that policy.”);Barrett v. Forest Labs., Inc., No. 12 cv. 5224(RA)(MHD), 2015 WL 5155692, at *3 (S.D.N.Y. Sept. 2, 2015) (“[T]he courts have consistently held that EPA plaintiffs asserting that they and fellow employees were subjected to conduct by their common employer that violated their right to equal pay under the EPA may be granted conditional certification if they make the necessary provisional demonstration that non- party employees were similarly situated with respect to an asserted violation.”). Second, the Court finds no merit in Defendants' argument that any EPA collective action will necessarily be unmanageable unless all of the proposed class members do substantially equal work. As a preliminary matter, Defendants ignore the possibility of subclasses. In such a case, each subclass could offer common proof that the members of the subclass perform substantially equal work. See Earl, 2014 WL 6608769, at *6 (“[S]uch male teaching faculty are similarly situated to Plaintiff to the extent that they claim that [the defendant], in violation of the EPA, has paid them less than female comparators within their departments, just as Plaintiff claims that [the defendant] has violated the EPA by paying him less than female comparators within his department.”); cf. O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009) (“[I]t is possible that representative testimony from a subset of plaintiffs could be used to facilitate the presentation of proof of FLSA violations, when such proof would ordinarily be individualized.”). Moreover, even in a case with multiple subclasses, the entire class may offer proof of the defendants' uniform compensation and performance evaluation policies, and proof that such policies lead to systematic unequal pay for women. See Moore v. Publicis Groupe SA, No. 11 Civ. 1279(ALC)(AJP), 2012 WL 2574742, at *10-11 (S.D.N.Y. June 29, 2012) (conditionally certifying an EPA collective action when, among other evidence, the plaintiffs submitted evidence that members of the purported class were subject to the same compensation policies). Additionally, Defendants may have statutory defenses, such as the existence of a merit compensation policy, common to the collective action class. See 29 U.S.C. § 206(d)(1). A determination of the manageability of the class is more appropriate on a case-by-case basis at the stage- two analysis. See, e.g., Wellens, 2014 WL 2126877, at *5 (“[W]hether the 'disparate factual and employment settings of the individual plaintiffs' means that this case cannot proceed collectively, or would need to be prosecuted with subclasses for each of the job titles or geographic locations, is a matter to be determined at the second stage of the certification process.”); Creely, 789 F. Supp. 2d at 828 (“Even under the hybrid standard above, the Court is simply making a determination on whether there is enough evidence to support sending out notifications to a potential similarly situated opt- in class. The arguments regarding whether the collective action opt-in group is manageable or whether individual issues predominate are properly addressed under the more stringent stage-two analysis.”). Manageability is better addressed once the factual record, the issues of common Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 17 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 proof, and the number, geographic location, and job duties of any opt-in plaintiffs are presented to the Court at the second stage of analysis. *10 Finally, no court has equated “substantially equal” work under the EPA with “similarly situated” under § 216(b) as Defendants advocate. In fact, two courts, including one in this Circuit, have explicitly rejected defining “similarly situated” as “substantially equal” work, and noted that “the Court cannot hold Plaintiffs to a higher standard simply because it is an EPA action rather an action brought under the FLSA.” Moore, 2012 WL 2574742, at *11; Wellens, 2014 WL 2126877, at *5 n.16. Other courts have conditionally certified classes without requiring “substantially equal” work among class members. See Kassman v. KPMG LLP, 2014 WL 3298884, at *7, *9 (S.D.N.Y. July 8, 2014) (conditionally certifying EPA class and noting that it is “not necessary for the purposes of conditional certification that the prospective class members all performed the same duties as the named plaintiffs”);Earl, 2014 WL 6608769, at *6 (conditionally certifying EPA class and finding not all proposed class members needed to be able to use the same comparator); Rochlin v. Cincinnati Ins. Co., No. IP00-1898-CH/K, 2003 WL 21852341, at *16 (S.D. Ind. July 8, 2013) (conditionally certifying EPA class of female attorneys in multiple job roles). The Court agrees that importing the “substantially equal” work standard into the conditional certification analysis for EPA cases— which is not required in other types of cases seeking collective action certification under § 216(b)—“would be contrary to the broad remedial goals” of the EPA. See O'Brien, 575 F.3d at 586 (“Congress has stated its policy that [EPA] plaintiffs should have the opportunity to proceed collectively.”). In sum, the Court concludes that all proposed members of an EPA collective action need not perform “substantially equal” work to each other to be “similarly situated” for the purposes of conditional class certification. Rather, the proposed class members here are “similarly situated” to Coates if “the putative class members were together the victims of a single decision, policy, or plan” that resulted in the class members receiving lower pay for doing substantially equal work as male counterparts. See Thiessen, 267 F.3d at 1102; Earl, 2014 WL 6608769, at *6 (“To the extent that Plaintiff alleges such policy violated the EPA, assuming the truth of such allegations, other male teaching faculty subject to such policy are similarly situated to Plaintiff because those faculty might also assert EPA claims against NSU based on that policy.”). 2. Application Coates argues that she is similarly situated to other female attorneys working in the Claims Litigation Department because (1) they all were subject to the same compensation policies and practices, which were implemented regardless of job title, salary grade, or geographic location by a small highly centralized group of decisionmakers; and (2) the compensation policies resulted in lower pay for female attorneys compared to male attorneys. Applying the above “fairly lenient” standard, the Court holds that Coates has shown that she and the proposed class members are “similarly situated” for the purposes of conditional certification. First, Coates has made a “modest factual showing” that the putative class members were the victims of a single decision, policy, or plan. See Myers, 624 F.3d at 555. Here, the evidence in the record tends to show that the compensation and related performance evaluation policies are common across job titles, salary grades, and geographic area. See Andrus Decl. Ex. NN (describing compensation management program and uniform performance rating system); Andrus Reply Decl. Ex. K (discussing compensation management for “all” states and “all” offices). Although Managing Attorneys have some discretion in setting compensation for the attorneys that they supervise, raises are determined according to set ranges and [redacted text] See, e.g., Miller Decl. ¶ 16 (noting that percentage increases are set “within our assigned budget” and “within the constraints of the salary grade system”); Andrus Reply Decl. Exs. K, Q. Additionally, Coates has offered evidence that within job titles, and among certain job titles, attorneys are performing the same tasks and following the same standardized case management guidelines. See Andrus Decl. Exs. EE, NN, OO-TT; Andrus Reply Decl. Exs. M- N; Coates Depo. p. 167. This further supports Coates's contention that the application of the performance criteria and compensation policies is uniform across the proposed class. See Barrett, 2015 WL 5155692, at *3 (certifying EPA class and noting that standardized pay rules, similar job descriptions, and required skill summaries reflect “the corporation's assumption that the work done by these individuals is sufficiently comparable that their Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 18 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 compensation is to be guided by the same criteria across the board, limited only by their geographic region and by a very narrow area of discretion on the part of their supervisors to increase their pay”). Moreover, Defendants do not dispute that all of the attorneys in the Claims Litigation Department are covered by the same compensation and evaluation policies, and are measured according to the same performance criteria. *11 Defendants do dispute the relevance of common policies to an EPA claim. Defendants argue that such policies are irrelevant because, ultimately, each plaintiff must demonstrate that she actually received unequal pay, regardless of the policies in place. See Opp. at 1, 17-18. The Court disagrees. Common policies related to compensation are relevant to conditional EPA class certification because a compensation policy that is applied across the proposed class, coupled with evidence that the policy results in discriminatorily unequal pay, suggests the existence of other similarly situated plaintiffs who may have EPA claims arising from the application of that policy. See, e.g., Earl, 2014 WL 6608769, at *6; Wellens, 2014 WL 2126877, at *4 (“Plaintiffs can, however, base their common policy claim on the unofficial policy of [the defendant]...to unfairly compensate women.”). Indeed, courts have repeatedly relied upon evidence that a defendant applied the same compensation policy to the plaintiff as other members of the purported class in order to determine whether potential plaintiffs are “similarly situated” in EPA cases. See Earl, 2014 WL 6608769, at *6 (noting faculty performance policy establishes a common evaluation scheme, and other male faculty may have EPA claim based on that policy); Kassman, 2014 WL 3298884, at *6 (relying in part on “documentary evidence of [the defendant's] firm-wide compensation policies”);Moore, 2012 WL 2574742, at *10-11 (conditionally certifying an EPA collective action when, among other evidence, the plaintiffs submitted evidence that members of the purported class were subject to the same compensation policies). Second, Coates has presented evidence that these policies result in class-wide unequal pay for female attorneys. Coates offers evidence that female attorneys are paid less than male attorneys, on average. Andrus Decl. ¶ 7; Mot. at 14. 5 More importantly, Coates and each of the opt-in plaintiffs have identified a higher-paid male comparator. Coates Decl. ¶¶ 15-16; Andrus Decl. ¶¶ 8-14; Andrus Reply Decl. ¶¶ 6-8; see also Earl, 2014 WL 6608769, at *7 (“As evidence of the existence of a class of plaintiffs similarly situated to the named plaintiff, courts consider affidavits from other employees who assert that a defendant has violated their rights in the same manner as those of the named plaintiff.”). Coates and the opt-in plaintiffs have held a variety of job titles and salary grades, providing a “modest factual showing” that the alleged pay inequality occurs across job titles and salary grades in the Claims Litigation Department. See Andrus Decl. ¶¶ 8-14 (trial attorney; attorney; attorney in workers' compensation; senior trial attorney in workers' compensation, and high exposure attorney); Andrus Reply Decl. ¶¶ 6-8. In opposition, Defendants dispute whether Lauderdale is an appropriate comparator to Coates. Opp. at 22-23. However, the notice-stage is not the appropriate time to evaluate the merits of Coates's EPA claim. See Benedict, 2014 WL 587135, at *11; see also Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (“The focus of [the] inquiry [during a motion for conditional certification]...is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are 'similarly situated'....”). Additionally, Defendants do not dispute the validity of Coates's comparison to Dan Schaar, or the opt-in plaintiffs' comparisons to their identified comparators. See generally Opp. Thus, Defendants' argument about Lauderdale does not undermine Coates's proffered evidence that she received unequal pay due to Defendants' compensation policies, as did other female attorneys. Taken together, the evidence is sufficient to provide a “modest factual showing” for Coates's claim that Defendants' compensation and evaluation policies have resulted in female attorneys in the Claims Litigation Department receiving unequal pay compared to male attorneys doing substantially equal work. Again, the Court notes that, at this stage, the Court is not deciding the merits of any EPA claim, but is simply making a determination as to whether there is enough evidence to support sending out notifications to a potential similarly situated opt-in class. *12 Defendants also argue that, in this specific case, the proposed class is unmanageable given the differences in job responsibilities of the proposed class members and the varied geographic locations. 6 See Opp. at 2, 8-10 (noting, for example, that some attorneys perform mostly management duties; others have no management Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 19 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 duties and exclusively represent clients in court; others never appear in court, but write briefs or appear before administrative agencies). However, Coates has provided evidence that attorneys within job titles actually share the same duties, responsibilities, skills, and competencies. See Andrus Decl. Exs. NN, EE (discussing job analysis method); Andrus Decl. Ex. V-CC (attorney profiles); Andrus Reply Decl. Exs. X-Y (same). Additionally, Coates has offered evidence that the legal tasks, skills, and knowledge of attorneys at least at salary grades [redacted text] are substantially identical. See Andrus Reply Decl. Exs. M-N; see also Andrus Decl. Ex. EE. Finally, as discussed above, Coates has shown that the compensation and evaluation policies are applied across job titles. Courts have often conditionally certified multi- job-title classes in similar situations. See Wellens, 2014 WL 2126877, at *2 (conditionally certifying class of approximately 1500 women within six job titles);Moore, 2012 WL 2574742, at *10-11 (conditionally certifying EPA class with members that “held four different job titles, worked in nine different establishments across the nation, worked in diverse practice and industry segments, and had varying levels of responsibilities, numbers of employees reporting directly to them, and years of experience”); Diaz v. S&H Bondi's Dep't Store, No. 10 Civ. 7676(PGG), 2012 WL 137460, at *6 (S.D.N.Y. Jan. 18, 2012) (“Courts have found employees 'similarly situated' for purposes of the FLSA where they performed different job functions or worked at different locations, as long as they were subject to the same allegedly unlawful policies.”). Accordingly, given the relatively small possible class size (300 individuals) and the overlap within and among job titles, the Court concludes that an inquiry into manageability is better made at the second-stage, when the Court has more information about the composition of the class. As another district judge within this Circuit explained: That [Defendants] may pay different wages for different positions (within set ranges), that job duties vary between divisions and job titles, and that different positions are compensated differently based on location, are not factors that defeat conditional certification. Instead, whether the “disparate factual and employment settings of the individual plaintiffs” means that this case cannot proceed collectively, or would need to be prosecuted with subclasses for each of the job titles or geographic locations, is a matter to be determined at the second stage of the certification process. Wellens, 2014 WL 2126877, at *5. The Court concludes that Coates has a “reasonable basis” for her claim that female attorneys in the Claims Litigation Department are a class of persons similarly situated to Coates because the proposed class members may also have EPA claims predicated upon the same compensation and evaluation policies as Coates. For the foregoing reasons, the Court concludes that Coates has met the lenient notice-stage standard for conditional certification. If, after the close of discovery, it becomes apparent that the EPA claims should be pursued on an individual basis, Defendants may move to decertify the class. Defendants may renew their defenses at that time. Accordingly, the Court GRANTS Coates's motion for conditional collective action certification. The Court now turns to the notice to be sent to the conditional class members. C. Proposed Class Notice *13 The U.S. Supreme Court has held that employees need to receive “accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate” in the collective action. Hoffman-La Roche, 493 U.S. at 170. Here, Coates has provided a copy of the proposed notice and opt-in form, as well as a reminder postcard to be sent prior to the expiration of the notice period. ECF No. 56-5 Ex. A (“Notice”); Ex. B (“Opt-In Form”); Ex. C (“Reminder Postcard”). Relatedly, Coates requests that the Court order Defendants to produce contact information for class members, and authorize a 90-day opt-in period. Revised Proposed Order. Although Defendants present no arguments in opposition to the Notice or Opt-In Form, the Court finds that two changes to the forms are appropriate. See Hoffman-La Roche, 493 U.S. at 170-71 (noting that a district court has a “managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way”). First, the Notice and Opt-In Form must be amended to reflect the more restrictive class definition proposed in Coates's Reply and Revised Proposed Order. See Revised Proposed Order. Accordingly, the Notice and Opt-In Form shall include that “The Class excludes individuals working in Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 20 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 Farmers Legal Business Administration (formerly known as 'Claims Legal Services Management').” See id. Second, on page 3 of the Notice, the sentence “If Plaintiffs recover no money from Farmers, they will not be paid for their work on this case” shall read “If Plaintiffs recover no money from Farmers, Plaintiffs' Counsel will not be paid for their work on this case.” Coates shall revise the proposed Notice and Opt-In Form accordingly. The Court finds that, in all other respects, Coates's proposed Notice clearly and neutrally communicates to potential class members the rights at stake in this litigation and their statutory opt-in right. The Court approves the requested 90 day opt-in period. See, e.g., Benedict, 2014 WL 587135, at *13 (“[A] notice period of ninety days is sufficient time for a class member to receive the Notice, ask any questions of Plaintiffs or their counsel, and make an informed choice as to whether or not they wish to participate.”);Gee v. Suntrust Mort., Inc., No. C-10-1509 RS, 2011 WL 722111, at *4 (N.D. Cal. Feb 18, 2011) (ninety day opt-in period for mortgage underwriters). Additionally, because courts commonly approve such methods of notice, the Court authorizes Coates to send the reminder postcards and to post notices within each Branch Legal Office. See Benedict, 2014 WL 587135, at *14 (approving reminder postcards); Carrillo v. Schneider Logistics, Inc., No. CV 11-8557 CAS(DTBx), 2012 WL 556309, at *13 (C.D. Cal. Jan. 31, 2012) (approving posting of notices in defendants' facilities). Further, courts “routinely approve the production of email addresses and telephone numbers with other contact information to ensure that notice is effectuated,” and the Court finds that warranted here as well. Benedict, 2014 WL 587135, at *14; see also, e.g., Lewis, 669 F. Supp. 2d at 1128-29 (“The Court finds that providing notice by first class mail and email will sufficiently assure that potential collective action members receive actual notice of this case.”). IV. CONCLUSION For the foregoing reasons, the Court GRANTS Coates's motion for EPA conditional collective action certification. The Court conditionally CERTIFIES the following class: Women employed by Farmers Group, Inc., Farmers Insurance Exchange, or Farmers Insurance Company, Inc. (“Farmers”) in Claims Litigation at any time since June 8, 2012 in one or more of the following positions: attorney, workers compensation attorney, associate trial attorney, trial attorney, senior trial attorney, senior workers compensation attorney, specialty trial attorney, supervising attorney, supervising workers compensation attorney, HEAT attorney, or managing attorney (the “Class” or “Class Members”). The Class excludes individuals working in Farmers Legal Business Administration (formerly known as “Claims Legal Services Management”). *14 The Court ORDERS Defendants to produce to Plaintiff's counsel in Microsoft Excel or comparable format, within 10 days of the date of this Order, the names, all known addresses, all known e-mail addresses, all known telephone numbers, and Social Security numbers of all proposed class members. Plaintiff shall incorporate the aforementioned changes into her proposed Notice and Opt-In Form, and shall send the Notice and Opt-In Form to all individuals on the class list via first-class mail and email within 10 days of receipt by Plaintiff's counsel of the contact information from Defendants. Plaintiff shall also send reminder notices to the potential opt-ins toward the end of the opt-in period. Potential opt-ins shall be permitted to file consent to join forms until 90 days after the mailing of the first Notice. Plaintiff's counsel shall attempt to locate current addresses for all class members for whom a Notice is returned as undeliverable and shall promptly re-mail or re-email the Notice documents to the class member at that current address. Plaintiff's counsel shall keep a record of the addresses that it updates and the dates on which those Notices were sent to those addresses. Plaintiff's counsel is not required to mail the Notice to any particular individual more than two times. Plaintiff shall bear the full cost of the Notice, opt-in forms, and reminder notices. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 21 of 48 Coates v. Farmers Group, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 8477918, 99 Empl. Prac. Dec. P 45,457 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 Footnotes 1 As of September 20, 2015, the Claims Litigation Department employed 519 attorneys. Andrus Decl. ¶ 2. The Claims Litigation Department employed 815 attorneys during the class period, approximately 300 of whom are women. Id. 2 The Court notes that Coates has not consistently characterized the proposed class of potential plaintiffs in the collective action. In the complaint, the class definition did not include workers' compensation attorneys, nor exclude Farmers Legal Business Administration employees. Compl. ¶ 59. In Coates's motion, the class definition included workers' compensation attorneys, but did not exclude Farmers Legal Business Administration employees. ECF No. 56-5 (Proposed Order). The Court will consider whether to conditionally certify the collective action based on the definition of the class contained in Coates's Revised Proposed Order, submitted with her reply brief, which excludes individuals working in Farmers Legal Business Administration, and is the most restrictive definition submitted with the instant motion for conditional certification. See ECF No. 69; see also Reply at 8-9 n.18 (acknowledging and explaining change in definition). 3 Use of this two-tiered approach has been affirmed by at least six United States Courts of Appeals. See White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012); Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012); Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); see also Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014) (adopting the second-step factors from Thiessen, without stating if the two-tiered approach applies), cert granted, 135 S. Ct. 2806 (2015). 4 The sole consequence of conditional certification is the “sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court.” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013) (internal citations omitted). 5 The Court observes that the average salary across all salary grades does not establish that any one female employee was paid less than a male employee doing substantially equal work. Indeed, Coates indicates that there are more male attorneys than female attorneys at higher salary grades, which would skew the average salary for male attorneys higher. See Mot. at 5. Under the lenient first-stage standard for conditional certification, however, Coates need not produce expert statistical analysis on the gender pay disparity, and the deadline for opening expert reports is not until June 2, 2016, and the close of expert discovery not until July 21, 2016. ECF No. 30. 6 As part of the argument on manageability, Defendants point out that a comparator must be from the same “establishment” as the plaintiff. Opp. at 19-20. However, “[t]he general approach of the cases has been to decline to determine at the conditional-certification stage whether the plaintiffs will be able to satisfy the 'establishment' requirement.” Barrett, 2015 WL 5155692, at *8; see also, e.g., Kassman, 2014 WL 3298884 at *8; Moore, 2012 WL 2574742 at *11 (citing cases). Indeed, the courts have “typically approved certification for multi-state or national collectives without even addressing the 'establishment' question.” Barrett, 2015 WL 5155692, at *8 (citing Flood v. Carlson Rest. Inc., No. 14 Civ. 2740(AT), 2015 WL 260436, *4 (S.D.N.Y. Jan. 20, 2015) (citing cases)). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 22 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 5155692 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Megan BARRETT et al., Plaintiff, v. FOREST LABORATORIES, INC. et ano., Defendants. No. 12 cv. 5224(RA)(MHD). | Signed Sept. 2, 2015. MEMORANDUM & ORDER MICHAEL H. DOLINGER, United States Magistrate Judge. *1 This lawsuit was commenced by eleven former or current female employees of defendants Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. (collectively “Forest”). They assert claims under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act (“EPA”), 29 U.S.C. 29 U.S .C. § 206(d). Following the denial in part of defendants' motion to dismiss the Second Amended Complaint, Barrett v. Forest Labs., Inc., 39 F.Supp.3d 407 (S.D.N.Y.2014), ten of the plaintiffs have moved for certification of a collective action under the EPA to cover past and current female Sales Representatives who were in the employ of the defendants between 2009 and 2014. They also seek approval of a form of notice to be sent to potential opt- in plaintiffs. Defendants have opposed. The motion to certify is granted. ANALYSIS A. General Standards The EPA was enacted as an amendment to the Fair Labor Standards Act (“FLSA”). See, e.g., Anderson v. State Univ. of New York, 169 F.3d 117, 119 (2d Cir.1999), vac. on other gds., 528 U.S. 1111, 120 S.Ct. 929, 145 L.Ed.2d 807 (2000). It states: No employer ... shall discriminate, within an establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex .... 29 U.S.C. § 206(d)(1). Section 216(b) of the FLSA provides that a suit “may be maintained against any employer ... in any Federal or State court ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Under the FLSA, “district courts ‘have discretion, in appropriate cases, to implement [§ 216(b) ] ... by facilitating notice to potential plaintiffs' of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir.2010) (quoting Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). The Second Circuit has endorsed the “two- step method” adopted by the district courts, under which the court first makes “an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA violation has occurred.” Id. at 554–55 (citing cases). That step may be taken if the plaintiffs make “ ‘a modest factual showing’ that they and potential opt- in plaintiffs ‘together were victims of a common policy or plan that violated the law.’ “ Id. (quoting Hoffman v. Sbarro Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)). Following discovery, the court will, at the second stage and “on a fuller record”, decide “whether a so-called ‘collective action’ may go forward by determining whether Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 23 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 the plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs. The action may be ‘de- certified’ if the record reveals that they are not, and the opt-in plaintiffs' claims may be dismissed with prejudice.” Id. (citing cases). *2 The discussion of certification in Myers concerned a dispute that centered on the question of whether the plaintiffs were exempt from protection under the FLSA. The same concept, however, has been applied to claims of liability under the EPA. Thus, the courts have consistently held that EPA plaintiffs asserting that they and fellow employees were subjected to conduct by their common employer that violated their right to equal pay under the EPA may be granted conditional certification if they make the necessary provisional demonstration that non- party employees were similarly situated with respect to an asserted violation. See, e.g., Kassman v. KPMG LLC, 2014 WL 3298884, *4–8 (S.D.N.Y. July 8, 2014); Moore v. Publicis Groupe SA, 2012 WL 2574742, *7–12 (S.D.N.Y. June 29, 2012). As often noted, “[t]he [required] ‘modest factual showing’ cannot be satisfied simply by ‘unsupported assertions,’... but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.” Myers, 624 F.3d at 555 (quoting Dybach v. State of Florida Dep't of Corrections, 942 F.2d 1562, 1567 (11th Cir.1991); Sbarro, 982 F.Supp. at 261)) (emphasis in original). As elaborated by other courts, this burden is “minimal ..., in part, because ‘the determination that the parties are similarly situated is merely a preliminary one’ and may be modified or reversed at the second stage certification stage.” Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 368 (S.D.N.Y.2007) (quoting Iglesias– Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y.2007); Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y.2006)). Thus, “[a]t this procedural stage, ‘the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.’ “ Kassman, 2014 WL 3298884 at *5 (quoting Cunningham v. Elec. Data Sys. Corp., 754 F.Supp.2d 638, 644 (S.D.N.Y.2010)); Lynch, 491 F.Supp.2d at 368 (citing Barrus v. Dick's Sporting Good, Inc., 2006 WL 3373117, *4 (W.D.N.Y. Nov.3, 2006)). “The focus ... is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are similarly situated' ... with respect to their allegations that the law has been violated.” Id. at *6 (quoting Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005)). Accord, e.g., Sbarro, Inc., 982 F.Supp. at 262. In this case plaintiffs present various forms of evidence to demonstrate provisionally that the proposed collective of opt-ins are similarly situated to them and that there is at least a colorable basis for inferring-prior to full merits discovery—that defendants have violated their rights under the EPA. They proffer their own declarations reciting the facts that they all worked for various periods of time in different regions of the country as Forest Sales Representatives-the entry- level position for Forest marketing personnel—that all Sales Representatives operated under the same corporate standards governing skill requirements, training, the type of work that they performed and compensation, and that, based on their “observations and experience”, male Sales Representatives were paid more than female Sales Representatives. (Marcuse Decl. Exs. 1–10). Plaintiffs also proffer corporate documentation demonstrating that the Forest job description for that position, the skill sets demanded for hiring and retention, and the required training process were uniform and national. (Id. Exs. 13, 14, 15, 17 & 18). They also offer a set of documents that demonstrate that Forest had a single set of standards for initial base pay and for annual and merit raises, and that the company had a single set of procedures for determining the amount of compensation-including a presumptive ceiling on such raises-and a centralized system for reviewing any proposed increases that exceeded that ceiling. (Id. Exs. 16, 19, 20 & 21). They also document the fact that the company maintained a centralized set of geographically-based criteria, referred to as the COLA tiers, premised on a cost-of-living factor, to determine the degree of differential in pay for the company's different geographic regions. (Id. Exs. 16 & 17). *3 As for the question of whether there is a colorable basis for alleging gender discrimination in pay, apart from the allegations to that effect in plaintiffs' declarations, plaintiffs present two principal forms of evidence designed to suggest that Forest has indeed violated the EPA. We summarize each in turn. First, based on pre-motion production of pay records and some employment data made available by defendants, plaintiffs offer a report by their retained economist, Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 24 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Dr. Alexander Vekker. Dr. Vekker concludes from his regression analysis of the available data that there is a statistically significant difference between the pay of male and female Sales Representatives when controlling for a series of pertinent variables-notably, experience at Forest (including time at Forest and time as Sales Representatives) and COLA tier (id. Ex. 11 at 3) 1 —and that this holds true, to the disadvantage of the female work force, for the period from 2009 through 2014. (Id. Ex. 11 at 2–5 & Tables 1–2). In doing this analysis, Dr. Vekker performed two alternative assessments of the data that differ in terms of whether to use age as a surrogate for pre- Forest work experience—a category for which defendants were unable to supply specific data (id. Ex. 11 at 2 n. 3) —and in each case the pay differential was statistically significant in that they came in at 2.47 and 3.63 standard deviations, respectively. (Id. at 3–5). These results are both well above the threshold of 1.96 standard deviations, thus reflecting a likelihood well under 5 percent that random error accounted for the pay differential. (Id.). Second, plaintiffs present a series of lists of comparators for each of the ten plaintiffs, with each list composed of male Sales Representatives who had less or equal seniority as compared to the plaintiff and who worked in equivalent or lower-paid COLA tiers, but who nonetheless were being paid more than the plaintiff. These ten lists each included between four and seventy-one comparators. (Tracey Decl. ¶¶ 5–6 & Exs. A–J). Plaintiffs make clear that these lists did not reflect the entire universe of potential comparators, but rather only those male comparators whose pay exceeded that of the specified plaintiff. (Id. ¶ 6). This showing, on its face, is sufficient to justify certification of a collective. The proffer regarding corporate job descriptions, required-skill summaries, required training and standardized pay rules reflects an apparent uniformity in the corporation's treatment of personnel in the Sales Representative category. (Marcuse Decl. Exs. 13–21). It similarly reflects the corporation's assumption that the work done by these individuals is sufficiently comparable that their compensation is to be guided by the same criteria across the board, limited only by their geographic region and by a very narrow area of discretion on the part of their supervisors to increase their pay. (Id.). Moreover, even this narrow exception is subject to centralized review and approval for any pay that exceeded the very low ceilings imposed nationally. (Id. at Ex. 19). Thus the plaintiffs sufficiently demonstrate, at least provisionally, that female Sales Representatives are “similarly situated” for purposes of conditional certification. See, e.g., Kassman, 2014 WL 3298884 at *6–7; Moore, 2012 WL 2574742 at *10–11. 2 *4 As for the required minimal demonstration of potential merit, we start by reiterating what other courts have said-that for conditional certification “the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Moore, 2012 WL 2574742 at * 9 (quoting Cunningham, 754 F.Supp.2d at 644; Lynch, 491 F.Supp.2d at 368). Indeed, “weighing of the merits is absolutely inappropriate.” Id. (quoting Shajan v. Barolo, Ltd., 2010 WL 2218095 (S.D.N.Y. June 2, 2010)). Moreover, even if at least a peek in that direction is appropriate to inform the court's exercise of its acknowledged discretion as to whether to grant conditional certification, on that score plaintiffs again make a satisfactory proffer given the loose requirement of a “modest” or “minimal” showing. In short, plaintiffs have made such a modest showing. The plaintiffs' own assertions of discrimination are conclusory, although the declarants make vague reference to reasons for them to have believed pre-lawsuit that they were being paid less than comparable males. 3 In substance, their repeated assertion that such discrimination has now been borne out depends for its weight on the plaintiffs' economist's review of the data supplied by defendants in initial discovery and the lists of male comparators whose pay exceeds theirs. Those twin showings suffice for present purposes. As noted, Dr. Vekker's study yielded the conclusion- based on two somewhat different measures of the “prior experience” variable—that there was a statistically significant difference in pay between male and female Sales Representatives in the period from 2009 through 2014. Although the estimated differences were not great- ranging from 0.8% to 1.2% (Marcuse Decl. Ex. 11 at 1) —that does not undercut the potential viability of the plaintiffs' EPA claims. Moreover, although Dr. Vekker's methodology may, and undoubtedly will, be challenged in later proceedings in this case, for purposes of the modest showing demanded of plaintiffs, that study is certainly sufficient. See, e.g., Kassman, 2014 WL 3298884 at *6 n. 2; Moore, 2012 WL 2574742 at *10–11 (declining to consider Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 25 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 defendants' expert's critique of plaintiffs' expert statistical analysis). 4 Plaintiffs' lists of comparators also add some support to their showing of a colorable case of gender-based discrimination. The lists reflect the following numbers of male comparators who earned more in the years in which each plaintiff worked at Forest, despite the male Sales Representatives having less seniority (that is, time at Forest and time as a Sales Representative) and working in a COLA region that was equivalent to, or triggered a lower salary range than, the plaintiff's region: Plaintiff Years # of Comparators Marie Avila 2010 4 Megan Barrett 2009 65 2010 70 Kimberly Clinton 2011 4 Erin Eckenrode 2009 63 2010 62 Andrea Harley 2011 19 2012 51 Lindsey Houser 2009 17 Jennifer Jones 2009 34 Tracy Le 2012 10 2013 20 Julie Smyth 2010 14 2011 12 Jennifer Seard 2010 31 *5 (Tracey Decl. Exs. A–J). In opposition, defendants proffer a series of declarations by Forest supervisors and an economist's report, all of which are designed to demonstrate (1) that the female Sales Representatives are not “similarly situated” for purposes of conditional certification of a collective action and (2) that plaintiffs cannot demonstrate a gender-based disparity in pay. (Bair, Devennie, Turner, Ragins & Lynch Decls.). Defendants also press an argument that plaintiffs will be unable to satisfy the “establishment” requirement of the EPA. (Defts' Mem. 18–19). Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 26 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 These arguments fail for several reasons. First, and most fundamentally, “ ‘defendant[s'] attacks on plaintiffs' ... evidence are premature at the notice stage.’ “ Kassman, 2014 WL 3298884 at *6 n. 2 (quoting In re Penthouse Exec. Club Compensation Litig., 2010 WL 4340255, *2 (S.D.N.Y. Oct.27, 2010)); Moore, 2012 WL 2574742 at *9, 11. As numerous courts have observed, “arguments about credibility or the weight of the evidence ... are out of place in a conditional certification motion.” Spencer v. No Parking Today, Inc., 2013 WL 1040052, *5 n. 16 (S.D.N.Y. March 15, 2013) (citing Limarvin v. Edo Rest. Corp., 2013 WL 371571, *1 (S.D.N.Y. Jan.31, 2013); Kalloo v. Unlimited Mech. Co. of NY, 908 F.Supp.2d 344, 347 (E.D.N.Y.2012); Morris v. Lettire Const., Corp., 896 F.Supp.2d 265, 269 (S.D.N.Y.2012)). Accord, e.g., Kassman, 2014 WL 3298884 at *6 n. 2; Moore, 2012 WL 2574742 at *9 (citing cases) & *11 (“Defendants' arguments are more appropriate after discovery is finished. Then, Defendants can attack the validity of Plaintiffs' assertions and the Court will be in a better position to determine whether all class members are indeed similarly situated.”). Even if we look at the substance of defendants' proffer, it fails to undercut the adequacy of plaintiffs' showing for provisional certification. The declarations proffered by defendants are authored by three Division Managers, the Executive Director of Sales Planning and Analytics, and the Senior Vice President, Sales, and are designed to show, inter alia, (1) that Sales Representatives have somewhat different required skills depending on whether they are working in an urban setting or a suburban or rural location-for example, in rural areas the Sales Representative must travel great distances (Bair Decl. ¶ 5; Devennie Decl. ¶ 7; Turner Decl. ¶¶ 7–8)–and depending as well on such circumstances as whether they are located near certain major hospital centers (Bair Decl. ¶ 9; Devennie Decl. ¶ 11; Turner Decl. ¶ 12), the demographics of the patient population in their regions (Bair Decl. ¶ 6; Devennie Decl. ¶ 8; Turner Decl. ¶ 9), and the density of pharmacies in their regions (Bair Decl. ¶ 10; Devennie Decl. ¶ 12; Turner Decl. ¶ 13) 5 and (2) that decisions as to pay increases embody a subjective element in evaluating the Sales Representative. (Bair Decl. ¶¶ 11–12; Devennie Decl. ¶¶ 13–14 Turner Decl. ¶¶ 14–15). In addition, the three declarant Division Managers-who each supervise about ten Sales Representatives, including one or two of the plaintiffs-report that they themselves have approved salaries for those plaintiffs that compare favorably with the salaries of most or all of the male Sales Representatives on their respective teams. (Bair Decl. ¶¶ 13–15 Devennie Decl. ¶¶ 15–22; Turner Decl. ¶¶ 16–22). *6 The arguments derived from these proffers are wholly inadequate to show that the proposed opt-in plaintiffs are not similarly situated in terms of skill, effort and responsibility. The provisional justification for a proposed collective-and indeed the outcome of EPA litigation- does not depend upon whether all of the employees work in precisely the same fashion, like workers on an assembly line. See, e.g., Lavin–McEnerey v. Marist College, 239 F.3d 476, 480 (2d Cir.2001) (“plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are ‘substantially equal’ in skill, effort, and responsibility.”) (citing Tomka v. Seiler, 66 F.3d 1295, 1310 (2d Cir.1995)); Kassman, 2014 WL 3298884 at *6 (opt-ins can have “different job functions”) (citing Diaz v. S & H Bondi's Dep't Store, 2012 WL 137460, *6 (S.D.N.Y. Jan.18, 2012)). Indeed, the burden to satisfy the “similarly situated” requirement is quite low. Moore, 2010 WL 2574742 at *9 (citing inter alia Raniere v. Citigroup Inc., 827 F.Supp.2d 294, 319 (S.D.N.Y.2011)). Thus, a showing that the employees “had similar responsibilities” and “performed substantially the same work”, and did so “under similar working conditions” is sufficient. Id. at *10. Accord Cunningham, 754 F.Supp.2d at 651; see also Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999). Plaintiffs have made that demonstration, and the declarations by defendants do not undercut that showing. Moreover, defendants' assertion that different skills are required depending on the demographic and/ or geographic circumstances of a specific location is inconsistent with the documentation in the record reflecting that the company's stated job description for the position of Sales Representative and its specification of the required skills for that position do not make any distinction based on the demographic or geographic circumstances. (Marcuse Decl. Exs. 13–14, 17). 6 As for the fact that the defendants' formula for pay decisions embodies a subjective, as well as an objective, element, that fact—which does not is presumably found in many, if not most, by itself preclude EPA liability. See, pay e.g., plans Earl v. Norfolk State Univ., 2014 WL 6608769, *6 (E.D.Va. Nov.18, 2014) (university evaluated teachers based on “teaching, research, professional development Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 27 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 and service, university service, and community service”). The statute specifies certain potential justifications for pay differentials, even if those differentials are found to predominate in favor of one gender, but the factual basis for these justifications—which are “narrowly construed, Ryduchowski v. Port Auth. Of New York & New Jersey, 203 F.3d 135, 143 (2d Cir.2000) (quoting EEOC v. Aetna Ins. Co., 616 F.2d 719, 724 (4th Cir.1980))—must be established by the defendant's presentation of concrete evidence, see, e.g., Jamilik v. Yale Univ., 362 F. App'x. 148, 149 (2d Cir.2009); Belfi, 191 F.3d at 136; Bronzini v. Classic Sec. LLC, 2009 WL 102140, *7 (S.D.N.Y. Jan.15, 2009), and is not amenable to disposition on a provisional- certification motion. In any event, the mere inclusion in a pay formula of a subjective component obviously does not demonstrate the applicability of any of the statutory justifications for pay disparities, and defendants have offered no evidence on the current motion to justify any pay disparity in favor of a male comparator. In short, this issue must be addressed either on summary judgment or at trial. *7 As for defendants' proffer of their expert's critique of Dr. Vekker's study and Dr. Ward's revision of that study, it too fails to demonstrate that there is no basis for the statistical inference of impermissible deviation in pay by gender. As noted, the courts will not undertake an assessment of a defendant's challenge to the bona fides of the plaintiffs' statistical case at this stage. E.g., Kassman, 2014 WL 3298884 at *6 n. 2; Moore, 2012 WL 2574742 at *1011. That is an issue to be deal with on a Daubert or summary-judgment motion, or at trial. For our current purpose, it suffices to note that Dr. Vekker provides a rebuttal report in which he observes that the amendments to his variables utilized by Dr. Ward are all heavily weighted to minimize the observed pay disparities between genders, since it is females who predominantly are the ones who take a leave of absence or depart from the job temporarily or undertake shared work with another employee. (Henderson Decl. Ex. 1 at 1). He further notes that if these anomalous employees are dropped from the statistical universe, the divergence between pay for male and female Sales Representatives during the relevant period remains statistically significant. (Id . Ex. 1 at 1–2 & Table 1). Again, the validity of the two competing approaches to defining the variables in a regression analysis and in specifying the universe of comparable employees is an issue that is not appropriately addressed here. Defendants' attack on the plaintiffs' list of comparators also does not save their position. The significance of the plaintiffs' comparator data is arguably somewhat diluted by the conceded fact that plaintiffs listed only male comparators who were paid more than the plaintiffs- apparently a minority of comparators. Indeed, defendants seek to rebut this showing by asserting that the vast majority of male comparators earned the same as, or less than, the plaintiffs, and they accuse plaintiffs of “cherry picking” among comparators. (Friedman Decl. Ex. B at 7–8; Defts' Mem. 14). Nonetheless, this aspect of plaintiffs' proffer cannot be so easily dismissed. Under the EPA, male employees who perform substantially the same tasks as a female employee and have less seniority should presumptively be paid less, rather than more, than the female employee. 7 The fact that numbers of such male Sales Representatives (that is, males who have less seniority than the female and are not in a COLA that would itself justify higher pay for the male) are shown to have been paid more than their female equivalents at least raises a question as to whether these disparities are inconsistent with the statutory mandate, and defendants would bear the burden of justification for such disparities. See, e.g., Lavin–McEleney, 239 F.3d at 480 (affirming judgment for female assistant professor who earned less than one male comparator even though second comparator-a female-earned more than the male). *8 In this regard, it bears emphasis that even if many or most male comparators were not favored in pay compared to plaintiffs, that does not by itself absolve the employer. A plaintiff need only establish that one comparator was improperly favored in pay to make her showing at this stage. See, e.g., id., See also E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1009 (11th Cir.1989). 8 In short, there may well be an explanation for the higher pay given to the comparators listed by plaintiffs, but that justification remains to be supplied. Once again, that will be an issue for summary judgment or trial. We note as well that at one point defendants seem to question the viability of the plaintiffs' case because the pay differential determined by Dr. Vekker was quite modest, at least by comparison with other cases. (Defts' Mem. 11 & n. 17). Defendants, however, proffer no legal authority for the implicit notion that the EPA does not protect female employees from very modest deviations in pay by Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 28 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 gender. We are also aware of no such rule. Ultimately, if the difference in pay was small, so would be the damage award. 9 Finally, defendants argue that plaintiffs cannot satisfy the requirement of the statute that the discrimination have occurred within “an establishment” (Def.Mem.18– 19), a term generally treated-at least in certain contexts- as encompassing a singular “physical place of business”, for example a factory or an office building. See, e.g., 29 C.F.R. § 779.23 (“As used in the [Fair Labor Standards] Act, the term establishment, which is not specially defined therein, refers to a ‘distinct physical place of business' rather than to ‘an entire business or enterprise’ which may include several separate places of business.... As appears more fully elsewhere in this part, this is the meaning of the term as used in sections 3(r), 3(s), 6(d), 7(i), 13(a), 13(b), and 14 of the Act.”); 29 C.F.R. § 779.303. Since the plaintiffs define the collective to cover all female Sales Representatives nationally, defendants contend that the proposed collective should be deemed a non-starter. The general approach of the cases has been to decline to determine at the conditional-certification stage whether the plaintiffs will be able to satisfy the “establishment” requirement. See, e.g., Kassman, 2014 WL 3298884 at *8; Moore, 2012 WL 2574742 at *11 (citing cases). Indeed, the courts have typically approved certification for multi- state or national collectives without even addressing the “establishment” question. See, e.g., Flood v. Carlson Rest. Inc., 2015 WL 260436, *4 (S.D.N.Y. Jan.20, 2015) (citing cases). Moreover, it is not at all clear that, in this specific context, the term “establishment” is properly applied in the manner advocated by defendants. 10 Indeed, that question appears to call for a fact-intensive assessment. The pertinent Labor Department regulation defining “establishment” within the context of the EPA does state that the word “refers to a distinct physical place of business rather than to an entire business or ‘enterprise’ which may include several separate places of business. Accordingly, each physically separate place of business is ordinarily considered a separate establishment.” 29 C.F.R. § 1620(9)(a) (emphasis supplied). The regulation goes on, however, to observe that “unusual circumstances may call for two or more distinct physical portions of a business enterprise being treated as a single establishment. For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and performed under similar working conditions.” Id. § 1620.(9)(b). 11 Where there is evidence, for example, “that job responsibilities were generally the same across offices, compensation policies were firm-wide and ultimate compensation decisions were made by centralized leadership”, requested conditional certification will not be denied based on the invocation of the “establishment” requirement. Kassman, 2014 WL 3298884 at *8. Cf. Mullhall v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir.1994); Brennan v. Goose Creek Ind. School Dist., 519 F.2d 53 (5th Cir.1975). *9 Plaintiffs have certainly made a sufficient proffer to demonstrate in general terms that they have a colorable basis for satisfying these standards. Moreover, in the current context-in which it appears that Sales Representatives spend much or most of their work time on the road and not in any “physical place of business”, as they all perform the same type of work under centralized controls-there is still further reason to be skeptical that the “physical place of business” definition of “establishment” will govern here. 12 In short, the defendants' effort to block certification on this basis is misguided. Whether plaintiffs ultimately will be able to meet this requirement is a matter to be determined at the summary-judgment stage or at trial. The Form of Notice Plaintiffs have proffered a form of notice that they invite the court to adopt. Before we act on that request, we direct counsel on both sides to consult and make reasonable efforts to arrive at an agreed-upon form. This process is to be completed within seven days. Failing agreement, the parties are to submit their competing versions with a written explanation for their differences. Those submissions, if needed, will be due within ten business days from the issuance of this memorandum and order. CONCLUSION Plaintiffs' motion to conditionally certify a collective action is granted. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 29 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 All Citations Not Reported in F.Supp.3d, 2015 WL 5155692 Footnotes 1 Dr. Vekker's analysis also accounted for age in one of his two alternative assessments, and for year. (Id. Ex. 11 at 3). 2 Defendants appear to argue that the Second Circuit's recent decision in Glatt v. Fox Searchlight Pictures, 791 F.3d 376 (2d Cir.2015), implies a more searching standard for the conditional-certification analysis of whether the members of a collective are “similarly situated”, and that plaintiffs fail to meet that standard. (Def. Notice of Suppl. Auth. 2) (citing id. at 387–88). We disagree. Glatt focused on what circumstances must exist for an unpaid intern to be deemed an employee under the FLSA and therefore entitled to compensation. The Court adopted the so-called “primary beneficiary” test, which requires “a highly individualized inquiry”, and it cited a “non exhaustive” list of factors that must be balanced. Id. at 383–85. It then noted that there were significant relevant distinctions among both the plaintiffs and the various internship programs in which each plaintiff had participated; therefore, the evidence in those plaintiffs' proffer was insufficient to satisfy the commonality prong of a Rule 23 class certification. Id. at 385–86. In turning to the question of conditional certification of the FLSA collective, the Court reasoned that the plaintiffs' “common proof” did not address the questions raised by the “primary beneficiary” test, and it therefore remanded for further consideration. Id. at 388. By contrast, in this case, there is no dispute that plaintiffs are employees, and plaintiffs' evidence, showing their parallel experiences in the same job position, subject to the same corporate policies regarding hiring, starting pay scales, and performance reviews, amply addresses the question of whether they were “similarly situated”. 3 The Second Amended Complaint (“SAC”) specifies a few proposed comparators, (see, e.g., SAC ¶¶ 30, 44, 63, 106, 156, 198, 228, 263, 293, 315, 349), and defendants make much of the fact that the assumptions in that pleading that these male Sales Representatives were appropriate comparators and were being paid more than plaintiffs has not been borne out by discovery. (Def.Mem.13). Those errors in the SAC are presumably attributable to the fact that defendants have not made available to their employees individual-specific data as to pay and other factors that would define comparability. 4 We discuss below the defendants' critique of Dr. Vekker's methodology—a critique embodied in a report by their economist, Dr. Michael Ward—which focuses inter alia on the facts (1) that Dr. Vekker did not account for the circumstance that some employees either take leaves of absence or leave the company's employ for a period of time and then return and (2) that he did not include job-share employees in his study, omissions that Dr. Ward argues distort the results of the Vekker study. Indeed, defendant's economist suggests that if such account is properly taken, the results show no statistically significant differential between genders. (Friedman Decl. Ex. B at 3–7). Needless to say, Dr. Vekker replies, arguing that Dr. Ward's adjustments are severely gender-biased, and he demonstrates that if the individuals who had breaks in their employment with Forest were simply omitted from the statistical universe, the gender differential would remain statistically significant. (Henderson Decl. Ex. 1 at 1–2). For reasons to be noted, we need not, and do not, resolve this battle of the experts at present. 5 These declarants also note that the Sales Representatives will vary in terms of which Forest products they should emphasize. (Bair Decl. ¶ ¶ 7–8; Devennie Decl. ¶ 10; Turner Decl. ¶ 9, 11). 6 Defendants' showing does not meaningfully suggest any difference among Sales Representatives in effort or responsibility. 7 As noted, the statute affords the employer various affirmative defenses keyed to specific justifications for such a pay differential. See, e.g., Belfi, 191 F.3d at 136. 8 We note also that even if most male comparators are not so favored-a circumstance that might undercut a contention that such gender discrimination as has been shown was intentional—that would not bar the claim since the plaintiff need not show intent in order to prevail on an EPA claim. See, e.g., Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir.1997) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 n. 19, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). 9 Defendants suggest in their brief that Dr. Vekker had not accounted for the value of employees' compensation other than base pay. (Def. Mem. at 22). However, defendants do not calculate the effect of the addition of benefits to compensation in this case nor do they offer any legal authority compelling EPA plaintiffs to do such a calculation. 10 We note that the recent decision of the Second Circuit in Chen v. Major League Baseball Properties, ––– F.3d ––––, 2015 WL 4772359, *5–8 (2d Cir. Aug.14, 2015), in adopting a Department of Labor definition of the term (“a distinct physical place of business”), explicitly did so in the context of a specific exemption in the FLSA, see Chen, 2015 WL 4772359 at *5 (relying on 29 C.F.R. §§ 779.23 & .303, which define the term for purposes of section 13(a)(3), 29 U.S.C. § 213(a)(3)), Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 30 of 48 Barrett v. Forest Laboratories, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 5155692 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 and the Court carefully warned that the definition may vary depending on which provision of the FLSA was at issue. Id. at n. 7 (“we by no means foreclose the possibility that an alternative definition of establishment may arise under another provision of the FLSA or different factual scenario.”). 11 The regulation does not specify wheter all or some or only one of these listed circumstances must be found in order to deem multiple locations to be part of one establishment. 12 It also bears noting that the courts that have looked to the “establishment” issue have held that even if separate physical edifices amount to separate establishments, plaintiffs who are working in different buildings may sue collectively if they contend that they are discriminated against vis-a-vis employees within their respective buildings based on a policy or practice that the company applies across different “establishments. See, e.g., Kassman, 2014 WL 3298884 at *8; Rehwaldt v. Elec. Data Sys. Corp., 1996 WL 947568, *6–7 (W.D.N.Y. Mar.28, 1996). See also Mulhall, 19 F.3d at 591; Brennan, 519 F.2d at 56. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 31 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2007 WL 2301549 Only the Westlaw citation is currently available. United States District Court, E.D. Virginia, Norfolk Division. Meredith COLLINS, Plaintiff, v. LANDMARK MILITARY NEWSPAPERS, INC., Defendant. Civil No. 2:06cv342. | Aug. 6, 2007. Attorneys and Law Firms James Harrell Shoemaker, Jr., Veronica Elaine Meade Sheppard, Patten Wornom Hatten & Diamonstein LC, Newport News, VA, for Plaintiff. David Aaron Kushner, William Mccardell Furr, Willcox & Savage PC, Norfolk, VA, for Defendant. OPINION and ORDER HENRY COKE MORGAN, JR., Senior United States District Judge. *1 The matter before the Court is an employment discrimination dispute brought under the Equal Pay Act of 1963 (“Equal Pay Act”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) against Landmark Military Newspapers, Inc. (“Landmark” or “Defendant”) by Meredith Collins (“Collins” or “Plaintiff”), a former employee of Landmark. Three motions are currently before the Court. For the reasons that follow, Defendant's Motion for Summary Judgment is GRANTED in part, and DENIED in part. Accordingly, Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's Title VII claim. Additionally, Plaintiff's Motion for an Extension of Time to File its Response to the Summary Judgment Motion, and Motion for Leave to File an Amended Complaint are GRANTED for the reasons stated herein. I. PROCEDURAL HISTORY 1 On June 20, 2006, Plaintiff filed a Complaint against Landmark alleging “gender discrimination and unequal pay in violation Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. and the Equal Pay Act of 1963, 29 U.S.C. § 206(d).” Doc. 1 at 1. Defendant filed its Answer on October 23, 2006, denying Plaintiff's allegations of wrongdoing. Doc. 2. On April 20, 2007, Defendant filed its Rule 56 Motion for Summary Judgment, and supporting Memorandum. Docs. 9 (Motion), 10 (Memorandum), 12 (Affidavit filed April 30, 2007 to be included with Memorandum). On May 1, 2007, Plaintiff filed its Motion for Enlargement of Time to Respond to Defendant's Motion for Summary Judgment, and supporting Memorandum. Docs. 13 (Motion), 14 (Memorandum). On May 3, 2007, Plaintiff filed its Memorandum in Opposition to Defendant's Motion for Summary Judgment. Doc. 15. On May 7, 2007, Defendant filed its Reply Memorandum in Support of Defendant's Rule 56 Motion for Summary Judgment. Doc. 16. On May 9, 2007, Plaintiff filed its Motion for Leave to File First Amended Complaint, and supporting Memorandum. Docs. 18 (Motion), 19 (Memorandum). On May 21, 2007, Defendant filed its Memorandum in Opposition to Plaintiff's Motion for Leave to File First Amended Complaint. Doc. 24. No reply brief has been filed to this Motion. See Docket No. 2:06cv342. On June 5, 2007, the Court convened a hearing, and heard the arguments of counsel as to these three motions. See Docket No. 2:06cv342. II. FACTUAL BACKGROUND 2 A. Collins Background and Employment Prior to Landmark Collins earned a Bachelor's degree in Journalism from University of North Carolina at Chapel Hill. Doc. 10, Ex. 1 at 17 (Collins Deposition dated February 8, 2007). After Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 32 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 graduation, she was employed in the newspaper business in various capacities for different employers, and recalls earning at most $60,000 to $65,000 prior to going to work for Landmark. Doc. 10, Ex. 1 at 18-33. B. Collins at Landmark 1. From Sales Associate to General Manager During the spring of 2002, Plaintiff interviewed with Bill Eisenbeiss (“Eisenbeiss”) and possibly Beth Johnson (“Johnson”), for Landmark, regarding a sales position with a startup newspaper in Jacksonville, North Carolina. Doc. 10, Ex. 1 at 30-31; Doc. 10, Ex. 2 at ¶ 5 (Eisenbeiss Affidavit dated April 20, 2007). Eisenbeiss is and has been the president of Landmark since 2002. Doc. 10, Ex. 2 at ¶¶ 1-2. Landmark was created by a parent organization bearing a similar name “to pursue contracts to publish military newspapers at bases around the country.” Doc. 10, Ex. 2 at ¶ 2. Collins indicated to Landmark that she “had been making around $60,000 in her last job,” and was offered that amount for the sales position. Doc. 10, Ex. 1 at 32; Doc. 10, Ex. 2 at ¶ 6. Collins accepted the salary as offered to her at $60,000 per year, and began working in May of 2002. Doc. 10, Ex. 1 at 32; Doc. 15, Ex. 2 at ¶ 1 (Collins unnotarized Declaration dated May 3, 2007); Doc. 15, Ex. 7 (Payroll Authorization effective May 24, 2002). *2 Shortly after Collins was hired, Landmark needed a temporary start-up publisher at its Jacksonville, North Carolina 3 newspapers. Doc. 10, Ex. 2 at ¶ 7. Collins was hired at the same salary of $60,000 per year to fill in until a permanent publisher was hired, and received $7,500 in bonuses for her efforts. Doc. 10, Ex. 2 at ¶¶ 7-10; Doc. 15, Ex. 8 (Payroll Authorization effective July 1, 2002); Doc. 15, Ex. 2 at ¶ 15. In May of 2003, Collins' salary was increased to $75,000 at her request. Doc. 10, Ex. 2 at ¶ 12; Doc. 15, Ex. 11 (Payroll Authorization effective May 25, 2003). 4 She served in that capacity from June of 2002 until August of 2003. Doc. 15, Ex. 2 at ¶ 12. Rick Wilson (“Wilson”) was hired as a permanent publisher for the Jacksonville, North Carolina newspaper, for a salary of $85,000 plus a bonus incentive plan, and started work in August of 2003. Doc. 10, Ex. 2 at ¶ 13. He was hired and compensated accordingly due to his extensive military and newspaper experience. Doc. 10, Ex. 2 at ¶ 13. His experience at that time eclipsed that of Collins, as he had been a publisher, president and general manager for multiple publications spanning several decades and had a military connection that Collins lacked. Doc. 15, Ex. 17 (Collins resume); Doc. 15, Ex. 18 (Wilson resume). Collins was not held responsible for lack of profits at the Jacksonville newspaper during her start-up publisher assignment from July 2002 until August 2003. Doc. 10, Ex. 2 at ¶ 14. The Jacksonville paper lost $430,873 during Collins' tenure. Doc. 10, Ex. 2 at ¶ 14. Collins was hired as general manager of Landmark after Wilson took over in Jacksonville, and continued at her then salary of $75,000 per year. Doc. 10, Ex. 2 at ¶¶ 15-17. Her new designation as general manager was effective as of August 31, 2003. Doc. 15, Ex. 21 at 2 (Payroll Authorization effective August 31, 2003). Plaintiff reported to Eisenbeiss when she was acting as general manager. Doc. 10, Ex. 1 at 36. Collins was authorized for an increase in salary to $77,625.00 per year in May of 2004, received the increase, and resigned at the end of the year. Doc. 10, Ex. 2 at ¶¶ 32, 36; Doc. 15, Ex. 21 at 1 (Payroll Authorization effective December 31, 2004); Doc. 15, Ex. 2 at ¶ 1. Collins also received bonuses while working for Landmark. Doc. 10, Ex. 1 at 73. Her total bonuses were $7,500 in 2002, and $4,500 in 2004. Doc. 15, Ex. 2 at ¶ 15. 2. General Manager Duties In her role as general manager, Collins was “responsible, with Bill Eisenbeiss, for identifying publication targets for acquisition and markets in which to start completely new publications.” Doc. 15, Ex. 2 at ¶ 10. She has described her job as to help Eisenbeiss “build a $50-million business” by “harness[ing][her] experience and [ ] capabilities in whatever way was needed.” Doc. 10, Ex. 1 at 77; Doc. 10, Ex. 2 at ¶ 18. Additionally, Collins was solely responsible for “getting the new or acquired publications established, including hiring personnel, starting operations, establishing rapport and first impressions with the military, finding advertisers, establishing processes, serving as publisher and then moving on to acquire or start-up the next publication.” Doc. 15, Ex. 2 at ¶ 10. Collins, communicated with the publishers of various Landmark newspapers, looked for new contract opportunities for publications at other Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 33 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 military bases, helped publishers with their budgets, 5 reviewed budgets for Eisenbeiss, and assisted with advertising rates and a classified system for the properties. Doc. 10, Ex. 1 at 78, 85; Doc. 10, Ex. 2 at ¶¶ 16-18; Doc. 15, Ex. 2 at ¶¶ 10-11. Collins acted as a start-up publisher for several Landmark newspapers as part of her general manager duties. Doc. 10, Ex. 1 at 53, 57; Doc. 10, Ex. 2 at ¶ 16. A “large component” of her role would include assisting with start-up newspapers. Doc. 10, Ex. 1 at 77; Doc. 10, Ex. 2 at ¶ 16. Even when acting as the start-up publisher, Collins would continue to attend to her numerous other duties as general manager. Doc. 15, Ex. 2 at ¶¶ 11-12. *3 As general manager, Collins, at her suggestion, performed the duty of major account salesperson. Doc. 10, Ex. 1 at 76. Collins “was also very heavily involved in the day-to-day conversations and operational issues of [the] existing newspapers.” Doc. 10, Ex. 1 at 77. However, Eisenbeiss managed the publishers while Collins was general manager. Doc. 10, Ex. 1 at 82; Doc. 10, Ex. 2 at ¶ 19; Doc. 10, Ex. 3 at ¶ 2 (J.C. Pennington Affidavit dated August 4, 2006); Doc. 10, Ex. 4 at ¶ 6 (Jim Connors Affidavit dated April 20, 2007). As general manager, Collins had no community involvement requirements, but was involved in the community only when substituting as a start-up or temporary publisher. Doc. 10, Ex. 1 at 83-84. She did not make the decision to hire or fire any publisher, but participated in both processes. Doc. 10, Ex. 1 at 84, 178; Doc. 10, Ex. 2 at ¶ 19; Doc. 10, Ex. 3 at ¶ 4; Doc. 15, Ex. 1 at 116, 119-20. Collins was never responsible for the profits or losses of any publication when she was not substituting as start-up or temporary publisher. Doc. 10, Ex. 1 at 85; Doc. 10, Ex. 2 at ¶ 19. She did not have direct management responsibility of the sales forces at the various Landmark newspapers. Doc. 10, Ex. 1 at 85; Doc. 10, Ex. 2 at ¶ 19; Doc. 10, Ex. 3 at ¶ 6; Doc. 10, Ex. 4 at ¶ 7. 3. Employment Practices of Landmark While at Landmark, Collins never heard Eisenbeiss tell her or anyone else that she was being paid differently because of gender. Doc. 10, Ex. 1 at 36. Others confirm that Eisenbeiss was not influenced by gender in making employment decisions. Doc. 10, Ex. 2 at ¶ 39; Doc. 10, Ex. 4 at ¶ 11; Doc. 10, Ex. 6 at 11 (Pennington Deposition dated April 12, 2007). Jim Coleman (“Coleman”), Landmark's Human Resources executive, has never encountered a gender discrimination complaint nor observed any acts of gender discrimination at Landmark. Doc. 10, Ex. 5 at 45-48 (James E. Coleman Deposition dated March 22, 2007). Johnson, another Landmark employee, believes Collins was treated differently at Landmark but does not know whether it was due to her gender. Doc. 10, Ex. 7 at 58-59 (Beth Wendy Johnson Deposition dated March 22, 2007). Johnson testified that people are treated disparately at Landmark, but states she has “seen it happen to females and ... [has] seen it happen to males as well.” Doc. 15, Ex. 5 at 34, 58-59 (Beth Wendy Johnson Deposition dated March 22, 2007). Collins states another female may have been paid less than men in her position. Doc. 15, Ex. 4 at 38 (Meredith Collins Deposition dated February 8, 2007). In sum, all other employees of Landmark agree that Eisenbeiss does not discriminate based on gender. Doc. 10, Ex. 4 at ¶ 11; Doc. 10, Ex. 5 at 46-47; Doc. 10, Ex. 6 at 40; Doc. 10, Ex. 7 at 58-59. Collins states her opinion of whether Eisenbeiss intentionally discriminated against her, concluding in response to questioning: Q: [D]o you believe that Bill Eisenbeiss intentionally discriminated against you because of your gender? *4 A: I have never believed that Bill would maliciously, intentionally discriminate against me. I believe Bill is old school and views women differently than men and viewed me differently from the men, and I don't think it's anything that he purposefully premeditates to do. I think it's a part of who he is.... And I think that's why he couldn't see some of the things that happened were not okay. Doc. 10, Ex. 1 at 199. Collins also testified, “I firmly believe that Bill views women differently than men. And I think a white male in his 50s automatically gets the respect from Bill that just is given regardless of any real- any real evidence to warrant that.” Doc. 15, Ex. 4 at 209. Collins submits that Coleman told her that “Bill [Eisenbeiss] will never treat you fairly” in conversations with her about salaries. Doc. 15, Ex. 2 at ¶¶ 19, 37; Doc. 15, Ex. 5 at 31. There was no showing in the record that this comment stated a gender bias for the reason of the predicted unfair treatment. See Docket No. 2:06cv342. Collins asserts Eisenbeiss treated her differently from other male employees by micro-managing her, interrupting her, receiving phone calls in her presence, Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 34 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 asking her to type documents for him, and requiring her to share hotel rooms with subordinate female employees during business trips. Doc. 15, Ex. 2 at ¶¶ 38-40. Collins also states, in her unnotarized declaration dated May 3, 2007, that: Mr. Eisenbeiss treated me, in pay and as related above, in a discriminatory manner. His conduct was intentional. He views women in starkly different terms than men. I believe that his attitudes are intrinsic to his nature and “hard-wired.” It is clear to me that Jim Coleman shared his view. Doc. 15, Ex. 2 at ¶ 43. 4. Permanent Publisher Position Offered and Collins' Complaints At one point Collins states she was never offered a position as a permanent publisher for Landmark, but later agrees that she was offered the position. Doc. 10, Ex. 1 at 57, 59, 73; Doc. 10, Ex. 2 at ¶ 28. Collins acknowledges Eisenbeiss told her how much money she could make as a permanent publisher and that she could be a permanent publisher if Landmark won certain future contracts. Doc. 10, Ex. 1 at 59. Regarding Eisenbeiss' offer of a permanent publisher position, Collins concluded, “No, I'm the general manager of the division. Why should I have to take a subordinate job to be paid that way? Why should I have to move to San Diego or Jacksonville when I got a promotion to be the general manager and I've done that well?” Doc. 10, Ex. 1 at 70. Collins also stated when Eisenbeiss “was offering [her] publishing positions, I kept saying to Bill [Eisenbeiss], I shouldn't have to take a subordinate job to be paid the same.” Doc. 10, Ex. 1 at 73; Doc. 10, Ex. 2 at ¶ 28. Eisenbeiss' offers occurred after Collins voiced her salary complaints. Doc. 10, Ex. 1 at 59, 70; Doc. 15, Ex. 1 at 180. According to Collins, after disputing her pay, Eisenbeiss attempted to refer to her position as “chief of staff” or a “developmental position.” Doc. 15, Ex. 2 at ¶ 9. *5 A permanent publisher has responsibility for hiring, firing and evaluating employees; budgeting and managing the sales of the newspaper; publishing the paper with an appropriate design and content; participating in community events (often on nights and weekends); recommending rate changes for the publication; tracking the revenues and expenses of the paper; and bearing ultimate accountability for the profitability of the paper. Doc. 10, Ex. 3 at ¶ ¶ 9 -13; Doc. 10, Ex. 4 at ¶¶ 9-10; Doc. 10, Ex. 6 at ¶¶ 40-41; Doc. 15, Ex. 2 at ¶ 6. Collins acknowledged the differences between a start-up and permanent publisher positions in conversation with Jim Connors (“Connors”), a permanent publisher for the Jacksonville paper. Doc. 10, Ex. 4 at ¶¶ 1, 8. Specifically, Connors states: In late 2004 I traveled to Norfolk for a training session and had dinner with Ms. Collins as well as Bill Eisenbeiss. After dinner I had a conversation with Ms. Collins where she expressed some of her pay complaints to me. I asked her why she had never applied to be a Permanent Publisher, if she believed that that position paid better. She responded that she thoroughly enjoyed the challenges of the frenetic startup period but did not think that she would enjoy the responsibilities of being a Permanent Publisher. Doc. 10, Ex. 4 at ¶ 8. Collins has not disputed making this statement. See Docket No. 2:06cv342. Collins began complaining about her compensation in May of 2004, arguing she should be paid more than permanent publishers, whose jobs she viewed as inferior. Doc. 10, Ex. 2 at ¶ 31. In response to Collins' complaints, Eisenbeiss explained the jobs of general manager and permanent publisher were completely different, and offered her a pay increase to $77,625 per year. Doc. 10, Ex. 2 at ¶¶ 32-34; Doc. 15, Ex. 21 at 1. Eisenbeiss also directed that a survey be conducted “comparing Ms. Collins' salary to those of similar employees at other entities.” Doc. 10, Ex. 2 at ¶ 35. Comparable positions at other companies showed the appropriate pay range to be $65,000 to $75,000 per year, below Collins' then salary. Doc. 10, Ex. 2 at ¶¶ 32, 35-36; Doc. 16, Ex. 4 (General Manager Pay Analysis). 5. Start-up and Temporary Publisher Roles As noted, Collins also acted as a “start-up publisher” for Landmark in Jacksonville and Texas. Doc. 10, Ex. 1 at Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 35 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 47. Additionally, she served as a temporary publisher in Jacksonville from July of 2004 until September of 2004. Doc. 15, Ex. 2 at ¶ 12. The start-up publisher borrows employees from other geographic locations, lays down the infrastructure of the start-up newspaper, and eventually releases the borrowed employees in order to hire permanent employees from the same area as the paper. Doc. 10, Ex. 1 at 50; Doc. 15, Ex. 5 at 16. The start-up publisher is concerned about profits during the initial months of operation, but in a different way from a permanent publisher. Doc. 10, Ex. 1 at 50-51. According to Collins, a start-up publisher could be removed for making poor budget decisions. Doc. 10, Ex. 1 at 55. As a start-up publisher, Collins did not evaluate the performance of the borrowed employees, but was required to be involved in the community. Doc. 10, Ex. 1 at 51, 55. A startup publisher has unique responsibilities, challenges, and powers that a permanent publisher does not have. Doc. 15, Ex. 2 at 86-109; Doc. 15, Ex. 5 at 16-24 (Beth Johnson stating, in part, on page 18, in regards to the additional difficulties of a start-up publisher position as opposed to the permanent publisher position, “There's just a lot more potential for things to go wrong and it's a lot more challenging ...”). The start-up publisher is not required to move permanently to the newspaper location, nor to sign a non-competition agreement. Doc. 10, Ex. 2 at ¶ 31; Doc. 16, Ex. 1 at 70 (Collins stating she did not want to move permanently to another location). Additionally, Landmark must pay the additional travel and lodging expenses incurred by a start-up publisher that are not present with a permanent publisher. Doc. 10, Ex. 2 at ¶ 9. *6 As the start-up publisher in Jacksonville, North Carolina, from June of 2002 until August of 2003, Collins did not participate in the initial budget planning. Doc. 10, Ex. 1 at 52; Doc. 15, Ex. 2 at ¶ 12. Collins knew her position was as a temporary publisher, and that she would only be staying in Jacksonville during the week. Doc. 16, Ex. 1 at 86 (Collins Deposition dated February 8, 2007). Collins was authorized to hire and fire employees as start-up publisher in Jacksonville, and was responsible for planning the subsequent year's budget. Doc. 15, Ex. 2 at 82-83, 85. Plaintiff worked extremely hard while acting as the start-up publisher in Jacksonville. Doc. 15, Ex. 5 at 24. In this capacity, Collins did not have time to fully invest herself in the community, as would a permanent publisher, because her role was to make the paper operational. Doc. 10, Ex. 1 at 159-60. Accordingly, at Jacksonville, Collins focused on getting “the newspaper out on time every week,” “increas [ing] ... distribution efforts,” and training and hiring employees. Doc. 10, Ex. 1 at 159-60. By contrast, the permanent publisher's role in Jacksonville required more community involvement and maintenance of the operation. Doc. 10, Ex. 1 at 159-60. On some, but not all weekends, Collins was allowed to return to visit her husband, from her post at the start-up newspaper. Doc. 10, Ex. 1 at 56. Collins was not held responsible for the Jacksonville newspaper's loss of $430,873 during her tenure. Doc. 10, Ex. 2 at ¶ 14. As noted, this period of employment is outside the time frame for both the Title VII and Equal Pay Act claims. Collins acted as a start-up publisher in Texas from mid- December of 2003 through April of 2004. Doc. 15, Ex. 2 at ¶ 12; Doc. 10, Ex. 2 at ¶ 21. She “was very active in planning and putting together [ ] the budget.” Doc. 10, Ex. 1 at 52. Collins did not bear the same responsibility of a permanent publisher in Texas, as Coleman “managed the distribution effort of the entire paper.” Doc. 10, Ex. 2 at ¶ 22; Doc. 15, Ex. 6 at 22 (Pennington Deposition dated April 12, 2007). However, Collins was authorized to negotiate the Texas newspaper's contract with the Army. Doc. 15, Ex. 6 at 17-18. The Texas paper lost $325,760 during Collins' short tenure as start-up publisher, but Collins was not held accountable in light of her differing duties as start-up publisher. Doc. 10, Ex. 2 at ¶ 23. Collins received a bonus of $4,500 for her assistance with the Texas paper. Doc. 10, Ex. 2 at ¶ 24. J.C. Pennington (“Pennington”) was hired as permanent publisher for the Texas paper, and received a total of $80,130.67 for one full year of employment, in salary and bonuses. Doc. 10, Ex. 2 at ¶ 25. Collins earned approximately $90,000 in 2004. Doc. 10, Ex. 2 at ¶ 25. Pennington had previously earned over $100,000 per year in other employment positions. Doc. 10, Ex. 2 at ¶ 25. Pennington, who was held responsible for profits and losses as the permanent publisher in Texas, was fired solely for failing to run a profitable business. Doc. 10, Ex. 2 at ¶ 25; Doc. 10, Ex. 6 at 40-41; See Doc. 10, Ex. 4 at ¶¶ 9-10 (Jim Connors, the Jacksonville publisher, states he could be fired for failing to achieve profits as a permanent publisher). Again, this time period is before the time period concerned by the Title VII and Equal Pay Act claims. *7 In addition to acting as a start-up publisher, Collins worked as a temporary publisher in Jacksonville from July of 2004 to September of 2004, after Rick Wilson had been Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 36 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 terminated. Doc. 15, Ex. 2 at ¶ 12; Doc. 10, Ex. 1 at 133. For her efforts, she received a bonus of $3,341.70. Doc. 10, Ex. 1 at 132-33. Eisenbeiss states Collins received Wilson's identical salary and bonus structure while assisting in Jacksonville. Doc. 10, Ex. 2 at ¶¶ 26-27. Collins counters that Wilson earned 15.4% more than her for equal time worked in 2004. Doc. 15, Ex. 2 at ¶ 32. Connors was hired to act as permanent publisher in Jacksonville beginning in September of 2004, and was paid a salary of $80,000 per year with the identical bonus structure given to other permanent publishers. Doc. 10, Ex. 2 at ¶ 30; Doc. 10, Ex. 4 at ¶¶ 1, 3; Doc. 15, Ex. 22 at 26-29 (Connors Deposition dated March 26, 2007). Connors had a history of earning over $100,000 per year when he was hired. Doc. 10, Ex. 2 at ¶ 30; Doc. 10, Ex. 4 at ¶ 2. 6. Comparators For purposes of this lawsuit, Collins compares herself to Landmark's other employees, Wilson, Pennington, and Connors. Doc. 10, Ex. 1 at 36. Additionally, Collins notes Peter Lynch (“Lynch”) turned down an offer to work for Landmark at a salary significantly higher than her salary. Doc. 10, Ex. 1 at 36. 6 7. Collins' Employment History Since Landmark Collins left Landmark at the end of December of 2004, and began selling metal for E.J. Enterprises, based in Glen Burnie, Maryland, in March of 2005. Doc. 10, Ex. 1 at 15. She worked in that capacity until January of 2006. Doc. 10, Ex. 1 at 15-16. Over the course of her employment, Collins earned $50,000 to $55,000. Doc. 10, Ex. 1 at 16-17. From early February of 2006 until the beginning of 2007, Collins worked for the Daily Press in Williamsburg, earning $55,000 per year, and received two bonuses in the $3,000 to $4,000 range. Doc. 10, Ex. 1 at 11-12. While at the Daily Press, Collins applied for three other positions within the organization, but was not hired because she “hadn't been in [her] position long enough and [her team] missed [their] sales goal two months in a row.” Doc. 10, Ex. 1 at 13-14. Collins stated that her salary never exceeded the range of $60,000 to $65,000 both before and after her employment with Landmark. Doc. 10, Ex. 1 at 32-33. 8. Time Frame Simplified In summary, the time frame of Collins' employment with Landmark is as follows. In May of 2002, she was hired to work in a sales position, earning $60,000 per year. In June of 2002, she was promoted to start-up publisher for Landmark's Jacksonville newspaper with the same salary. Collins earned $7,500 in bonuses from Landmark during 2002. In May of 2003, Collins' salary was increased to $75,000 per year, the amount she requested. In August of 2003, Collins was promoted to general manager, and relieved of her start-up publisher position in North Carolina, as Wilson was hired as publisher of the newspaper. Plaintiff served as a start-up publisher in Texas from December of 2003 to April of 2004. In May of 2004, Eisenbeiss recommended a salary increase for Collins to $77,625 per year, which she received. Collins substituted as a temporary publisher in Jacksonville from July of 2004 to September of 2004. *8 The Title VII claim must be substantiated by a violation occurring since June 10, 2004, and the Equal Pay Act transgression must have occurred since June 20, 2004. Collins earned $4,500 in bonuses in 2004, and resigned at the end of the year. III. MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO MOTION FOR SUMMARY JUDGMENT Defendant filed its Motion for Summary Judgment on April 20, 2007. Doc. 9. Defendant's certificates of service indicate the Motion and accompanying Memorandum were “sent by electronic mail and by hand delivery” to counsel for Plaintiff on the same day. Doc. 9 at 2; Doc. 10 at 31. Under LOCAL CIVIL RULE 7(F)(1), Plaintiff had until May 1, 2007 to respond to the motion. On May 1, 2007, within the response period, Plaintiff filed its Motion for Enlargement of Time to Respond to Defendant's Motion for Summary Judgment, and supporting Memorandum. Docs. 13, 14. Therein, Plaintiff concedes receiving the Motion for Summary Judgment on April 20, 2007, and correctly states the due date for a Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 37 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 response as May 1, 2007. Doc. 14 at 1; LOCAL CIV. R. 7(F)(1). Additionally, Plaintiff states “Defendant consents to this extension,” and “requests an enlargement of one day” due to the “factually intensive” nature of the motion, the significant number of arguments are raised therein, and because of the packed schedule of Plaintiff's counsel. Doc. 13 at 1; Doc. 14 at 1. Plaintiff's Memorandum in Opposition to the Motion for Summary Judgment was filed on May 3, 2007, after both the original filing deadline and the requested extension date. Doc. 15. Because it aids the Court's decisional process and the filing is only two (2) days late, the Court GRANTS Plaintiff's Motion for Enlargement of Time to Respond to Motion for Summary Judgment, and considers Plaintiff's filing in Response to Defendant's Motion for Summary Judgment. IV. MOTION FOR SUMMARY JUDGMENT: LEGAL STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. PROC. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial .” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Indeed, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted). Also, “[u]nsupported speculation is not sufficient to defeat a summary judgment motion.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citation omitted). “In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23. “As to materiality, the substantive law will identify which facts are material.” Anderson, 477 U.S. at 248. “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250. *9 There is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim,” Celotex, 477 U.S. at 323, and Rule 56(c) limits the Court's consideration to certain documentary evidence, listing “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” FED. R. CIV. PROC. 56(c). Notably, “a party's affidavit which contradicts his own prior testimony should be disregarded on a motion for summary judgment” in certain circumstances, such as where the party is using affidavits to create “sham issues of fact.” Shockley v. City of Newport News, 997 F.2d 18, 23 (4th Cir.1993) (citing Mack v. United States, 814 F.2d 120, 124 (2nd Cir.1987)); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984) (refusing to consider, for summary judgment purposes, a “conclusory” affidavit of “a party who has been examined at length on deposition” which did not set forth the plaintiff's “personal knowledge” and which “contradict[ed] his own prior testimony”); Shaw v. Stroud, 13 F.3d 791, 804 (4th Cir.1994) (distinguishing Barwick and affirming the court's decision not to strike a deposition which was factually dissimilar to the affidavit in Barwick ); Salvin v. Am. Nat'l Prop. & Cas. Co., No. 2:06cv264, 2006 U.S. Dist. LEXIS 79721, at *10-11 (E.D.Va. October 31, 2006) (Friedman, J.) (unpublished) (following Barwick and concluding an affidavit was “conclusory and consist[ed] entirely of generalities” in limiting its significance for summary judgment purposes); Alba v. Merrill Lynch & Co., 198 Fed. Appx. 288, 300 (4th Cir.2006) (unpublished) (following Barwick and determining an affidavit contradicting the prior deposition testimony did not create a genuine issue of material fact). V. EQUAL PAY ACT CLAIM Plaintiff alleges Defendant violated the Equal Pay Act of 1963, by paying her less than her male counterparts for substantially equal work. Doc. 1. 29 U.S.C. § 206(d)(1) provides, in pertinent part, Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 38 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex ... A. Statute of Limitations and Relevant Evidence A cause of action must be commenced, under the Equal Pay Act, “within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a). “[E]ach issuance of a paycheck to a female employee at a lower wage than that issued to her male counterpart constitutes a new discriminatory action for purposes of Equal Pay Act limitations accrual.” Brinkley-Obu v. Hughes Training, 36 F.3d 336, 347 (4th Cir.1994); Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir.1980). 7 The Court may not normally redress any injury that occurred outside of the limitations period, except where a continuing violation is shown. Brinkley- Obu, 36 F.3d at 346 (“The statute of limitations applicable to Equal Pay Act and Title VII violations constitute a jurisdictional bar that operates in relation to the injury to the plaintiff.”); Tinsley, 155 F.3d at 442 (citation omitted). Before allowing the Plaintiff “to prosecute claims of discrimination” outside the statutory time period under a continuing violation theory, the Court “must first conclude that there was a present violation.” Tinsley, 155 F.3d at 442-43 (citation omitted). However, the Court may still consider evidence from before the limitations period, but may not redress prior injuries. Brinkley-Obu, 36 F.3d at 346 (stating the statute of limitations acts as a “jurisdictional bar that operates in relation to the injury to the plaintiff” but does “not operate as an evidentiary bar controlling the evidence admissible at the trial of a timely-filed cause of action”). Specifically, “the statute of limitations does not operate to limit the evidence [Plaintiff] may introduce regarding her co-workers.” Brinkley-Obu, 36 F.3d at 346. 1. Limitations Period & Motion to Amend the Complaint *10 Plaintiff does not allege a willful violation of the Equal Pay Act in her Complaint. Doc. 1 at 4. Defendant asserts that Plaintiff's failure to allege a willful violation in the Complaint “results in application of the two-year statute of limitations.” Doc. 10 at 14 n. 3 (citing numerous non-precedential authorities). In response to Defendant's argument regarding the insufficiency of the Complaint, Plaintiff filed a Motion for Leave to File First Amended Complaint on May 9, 2007. Doc. 18. As indicated by the motion's caption, the May 9, 2007 motion is the first motion to amend filed by Plaintiff. See Docket No. 2:06 cv342. Plaintiff's only material change to the Complaint is to include the statement, “Landmark willfully violated the Equal Pay Act in taking the actions complained of herein.” Doc. 19, Ex. 1 at 4 (Red-lined copy of First Amended Complaint). FED.R.CIV.P. 15(a) provides “leave [to amend a party's pleading] shall be freely given when justice so requires.” Additionally, “motions to amend are to be granted in the absence of a ‘declared reason’ such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, futility of amendment, etc.” Ward Elecs. Serv., Inc. v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir.1987) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)) (overturning district court refusal to allow second amended complaint). Furthermore, “the fact that an amendment changes the plaintiff's theory of the case will not suffice as a reason for denial absent a showing of prejudice, bad faith, futility, or dilatoriness associated Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 39 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 with the motion.” Ward, 819 F.2d at 497. Defendant argues Plaintiff should not be allowed to amend its Complaint for reasons of undue delay, and prejudice to the Defendant. Doc. 24 at 3-5 (citing Harding v. Kellam, 155 F.3d 559 (4th Cir.1998) (table opinion); Sandcrest Outpatient Servs., P.A. v. Cumberland County Hosp. Sys., 853 F.2d 1139, 1148-49 (4th Cir.1988); E. David Gable & Assoc. v. Dean Witter Reynolds, Inc., 166 F.2d 332 (4th Cir.1998) (table opinion); United States v. Genetics & IVF Institute, Inc., 199 F.3d 1328 (4th Cir.1999); and other non-precedential authorities). Specifically, Defendant argues the motion to amend the complaint was made “years after the events allegedly giving rise to her claims[, ... ] almost a year after Plaintiff filed her Complaint[, ... ] after the close of discovery and on the very eve of a summary judgment hearing for which all briefs had already been filed.” Doc. 24 at 4. Additionally, regarding prejudice to Defendant, Landmark asserts it “drafted these briefs to respond to Plaintiff's original Complaint using strategies that assumed the lack of allegation of willfulness.” Doc. 24 at 5. However, it appears that Defendant's opening brief considers the possibility that Plaintiff's complaint is not fatal, arguing in the alternative that “even if Plaintiff had alleged willfulness, there is no genuine issue of material fact related to this issue.” Doc. 10 at 14 n. 3. Accordingly, because it does not appear that granting Plaintiff's motion would prejudice Defendant in any way or delay the proceedings, the Court GRANTS Plaintiff's Motion for Leave to File First Amended Complaint, and hereby DIRECTS the Clerk to docket Plaintiff's filing captioned First Amended Complaint. Docs. 18, 19. 2. Two or Three Year Statute of Limitations Period *11 Regardless of whether willfulness is properly pleaded, as stated above, “[u]nsupported speculation is not sufficient to defeat a summary judgment motion.” Felty, 818 F.2d at 1128 (citation omitted). In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1998), the Supreme Court of the United States defined “the meaning of the word ‘willful’ as used in the statute of limitations applicable to civil actions” in 29 U.S.C. § 255(a) to require “that the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Where the Plaintiff “adduce[s] no evidence of willfulness” the two-year period of limitations is properly applied. Blount v. Thompson, 400 F.Supp.2d 838, 843 (D.Md.2004) (Messitte, J.), aff'd, 122 Fed. Appx. 64 (4th Cir.2005) (unpublished), cert. denied, 546 U.S. 1043 (2005). Defendant urges that there is no evidence from which to conclude that Defendant willfully violated the Equal Pay Act. Doc. 10 at 14 n. 3. Plaintiff rebuts that evidence of willfulness is shown from the testimony and declaration of Collins. Doc. 15 at 14. Specifically, Plaintiff cites Collins' deposition, which provides: Q: The last question I want to ask you before we take a short break is, do you believe that Bill Eisenbeiss intentionally discriminated against you because of your gender? A: I have never believed that Bill would maliciously, intentionally discriminate against me. I believe Bill is old school and views women differently than men and viewed me differently from the men, and I don't think it's anything that he purposefully premeditates to do. I think it's a part of who he is. My way of thinking, that doesn't excuse it. You know, it's still discrimination. And I think that's why he couldn't see some of the things that happened were not okay. ... Q: Why do you believe that Mr. Eisenbeiss was paying you less than Mr. Wilson was being paid? A: Over the time that I worked for Bill, I firmly believe that Bill views women differently than men. And I think a white male in his 50s automatically gets the respect from Bill that just is given regardless of any real-real evidence to warrant that. Doc. 15, Ex. 4 at 199, 209. Second, Collins also points to her recently signed Declaration as evidence of willfulness, which provides, Mr. Eisenbeiss treated me, in pay and as related above, in a discriminatory manner. His conduct was intentional. He views women in starkly different terms than men. I believe that his attitudes are intrinsic to his nature and “hard-wired.” It is clear to me that Jim Coleman shared his view. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 40 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 Doc. 15, Ex. 2 at ¶ 43. 8 Plaintiff lastly states willfulness is shown from the pay differential between Plaintiff and her comparators, the alleged statement of another employee to Plaintiff suggesting that Plaintiff would not be treated fairly by her supervisor at Landmark, the salaries and pay offer to other employees, the “excuses” offered by Landmark in defense of the pay differentials, and Eisenbeiss' concession that Collins' initial salary was set too low. Doc. 15 at 23. The Court finds that none of this proffered evidence shows willfulness, but rather is merely relevant to a general violation of the Equal Pay Act. The Court agrees with Defendants' assessment of Collins' deposition testimony and declaration as arguably showing a subconscious bias against women, but not evidencing a willful intention as defined in McLaughlin, 486 U.S. at 133. Willfulness as defined in McLaughlin requires “that the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” 486 U.S. at 133. Collins' statements, taken as a whole and in the light most favorable to Collins, show that Eisenbeiss may have treated men and women differently, but did not know or disregard whether his conduct was prohibited by statute. Accordingly, the Court considers only those injuries incurred during the two year limitations period prior to the filing of the Complaint, from June 20, 2004 until the employment ended. Doc. 1 (Complaint filed June 20, 2006). B. Definition of Establishment *12 As noted, the Equal Pay Act states, No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except ... 29 U.S.C. § 206(d)(1) (emphasis added). Accordingly, the Equal Pay Act requires employee pay scales to be measured “within any establishment in which such employees are employed.” 29 U.S.C. § 206(d)(1). Defendant argues that “Plaintiff cannot even compare her compensation while in Norfolk to the compensation of the publishers because the EPA does not allow comparisons between different ‘establishments' ... [which are] distinct physical place[s] of business rather than ... [the] entire business or enterprise which may include several separate places of business.” Doc. 10 at 19 n. 6 (citing 29 U.S.C. § 206(d); Jacobsen v. Pitman-Moore, Inc., 573 F.Supp. 565, 568 (D.Minn.1983); and Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1017 (11th Cir.1994)). Defendant asserts Plaintiff's comparison is improper because Collins was based in Norfolk, while her comparators “operated out of a distinct office in either North Carolina or Texas.” Doc. 10 at 19 n. 6. 29 C.F.R. § 1620.9 defines the meaning of establishment as “a distinct physical place of business rather than [ ] an entire business or ‘enterprise’ which may include several separate places of business.” 29 C.F.R. § 1620.9(a). The Code of Federal Regulations acknowledges that “each physically separate place of business is ordinarily considered a separate establishment ... [, but] unusual circumstances may call for two or more distinct physical portions of a business enterprise being treated as a single establishment.” 29 C.F.R. § 1620.9(a) and (b). “For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and performed under similar working conditions.” 29 C.F.R. § 1620.9(b). Absent a verified allegation that special circumstances exist which justify disregarding the normal establishment limitation, Plaintiff is required to present comparators in her distinct physical place of business. Moser v. Pizza Hut of Am., No. 97-0046-D, 1998 U.S. Dist. LEXIS 6256, at *27-28 (W.D.Va. April 9, 1998) (Kiser, J.) (unpublished); but see Grumbine v. United States, 586 F.Supp. 1144, 1148 (D.C.1984) (Greene, J.) (“It is clear from these decisions that, at least for purposes of public employment, the geographic reach of the term ‘establishment’ is not automatically determined by geography, as the government would have it, but depends upon the degree to which the particular governmental Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 41 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 entity has centralized its personnel administration.”) (decided prior to the publication of 29 C.F.R. § 1620.9). Accordingly, the Court considers the geographical distinctions in weighing Collins' prima facie case under the Equal Pay Act. C. Prima Facie Case *13 In addition to showing that the work performed by Collins was performed at the same establishment, the Plaintiff must show that the work was substantially equal to that performed by another male employee who received a higher wage 9 . This other male employee, known as a “comparator,” must be a real person and not “a hypothetical or ‘composite’ male.” Strag v. Board of Trs., 55 F.3d 943, 948 (4th Cir.1995) (citation omitted). Failure “to identify an appropriate comparator” is fatal to Plaintiff's claim under the Equal Pay Act. Strag, 55 F.3d at 950. To establish a prima facie case under the Equal Pay Act, “the plaintiff bears the burden of showing that she (1) receives lower pay than a male co-employee [, the “comparator,”] (2) for performing work substantially equal 10 in skill, effort, and responsibility under similar working conditions.” Strag, 55 F.3d at 948 (citation omitted). Additionally, “[t]he comparison between the plaintiff's job and that of the male comparator should be made factor by factor.” Gray v. Winter, No. 2:05cv433, 2006 U.S. Dist. LEXIS 29449, at *22 (E.D. Va. April 25, 2006) (Friedman, J.) (unpublished). Whether the jobs are “substantially equal” is determined by comparing a “common core of tasks” against any “differing or additional tasks.” Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir.1986) (citations and internal quotations omitted). 1. Comparing Jobs by Tasks not Titles “Equal work” is not shown “when two employees have similar titles but responsibilities that bear no more than the most general resemblance.” Wheatley, 390 F.3d at 330. Particularly, “one can have the same title and the same general duties as another employee, and still not meet two textual touchstones of the EPA-equal skills and equal responsibility.” Wheatley, 390 F.3d at 332; EEOC v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir.1981) (“Application of the Equal Pay Act depends not on job titles or classifications but on the actual requirements and performance of the job.”); 29 C.F.R. § 1620.13(e). Jobs may be considered unequal, “despite having the same core responsibilities” if the higher paid job “require[s] extra effort, consumes a significant amount of time ... and [is] of an economic value commensurate with the pay differential.” Wheatley, 390 F.3d at 333. 2. Differences in Skill, Effort or Responsibility Not Detracting from Plaintiff's Case “Differences in skill, effort, or responsibility which might be sufficient to justify a finding that two jobs are not equal within the meaning of the EPA if the greater skill, effort or responsibility has been required of the higher paid sex, do not justify such a finding where the greater skill, effort, or responsibility is required of the lower paid sex.” Brinkley- Obu, 36 F.3d at 342 n. 12 (citing 29 C.F.R. § 1620.14(a)). 3. Skill “The jobs to which the equal pay standard is applicable are jobs requiring equal skill in their performance.” 29 C.F.R. § 1620.15(a). “Skill includes such considerations as experience, training, education, and ability.” Universal, 653 F.3d at 1245; 29 C.F.R. § 1620.15(a); Rapson v. Development Auth. of Peachtree City, No. 3:02-CV-7-JTC, 2004 U.S. Dist. LEXIS 12579, at *9-10 (N.D.Ga. March 31, 2004) (Camp, J.) (unpublished). 4. Effort *14 “Effort refers to the physical or mental exertion necessary to the performance of a job.” Universal, 653 F.3d at 1245; Rapson, 2004 U.S. Dist. LEXIS 12579, at *10 (distinguishing the plaintiff from the comparator based on the number of hours worked and number of hours on call); 29 C.F.R. § 1620.16(a). Furthermore, “ ‘effort’ encompasses the total requirements of a job.” 29 C.F.R. § 1620.16(a). 5. Responsibility “Responsibility concerns the degree of accountability required in performing a job.” Universal, 653 F.3d at 1245; 29 C.F.R. § 1620.17(a) (further emphasizing Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 42 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 “the importance of the job obligation.”). The degree of financial risk born by the comparator and the Plaintiff is a factor for determining whether the two perform equal work. Jacobs v. College of William & Mary, 517 F.Supp. 791, 797 (E.D.Va.1980), aff'd without opinion, 661 F.2d 922 (4th Cir.1981), cert. denied, 454 U.S. 1033, 102 S.Ct. 572, 70 L.Ed.2d 477 (1981) (concluding disparate financial pressures show work performed by male and female basketball coaches was not equal under the Equal Pay Act); Rapson, 2004 U.S. Dist. LEXIS 12579, at *10 (noting the comparator was “responsible for the ultimate profit or loss of the pro shop and earns less compensation if the pro shop performs poorly” in contrast to the Plaintiff, who bore “no similar financial risk”); Stanley v. University of Southern California, 13 F.3d 1313, 1321-22 (9th Cir.1994) (noting differences between male and female basketball coaching jobs, which include “substantial public relations and promotional activities to generate revenue for USC” to be performed by the male coach, and the pressure on the male coach to produce “a large amount of revenue”); Cullen v. University Bd. of Trs., 338 F.3d 693, 700 (7th Cir.2003). Also, the relative supervisory responsibilities of the comparator and the Plaintiff affect whether the work performed is substantially equal. Gu v. Boston Police Dep't, 312 F.3d 6, 16 (1st Cir.2002); Cullen, 338 F.3d at 700 (“[I]t is reasonable to conclude that Dr. Quillen's management of a department twice the size of Dr. Cullen's is indicative of greater responsibility.”); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 514 (8th Cir .1995). 6. Analysis Collins states she was paid less than her comparators, and thereby establishes prong one of her prima facie case. Collins also has adduced a sufficient evidentiary basis under prong two, which requires her to show that she “perform[ed] work substantially equal in skill, effort, and responsibility under similar working conditions” to her male comparators. Strag, 55 F.3d at 948 (citation omitted). In comparing the common tasks of the respective positions, general manager and permanent publisher, against their differing or additional tasks, the Court finds the positions are substantially similar under the Equal Pay Act. Particularly, while the Court does not find Collins' efforts in Norfolk comparable to the work of other employees in North Carolina, the Court does find her employment as a temporary publisher in North Carolina from July of 2004 to September of 2004 is substantially equal to the work performed by both her predecessor and successor publishers at that location. *15 Specifically, the Court finds Collins' work as general manager acting in Norfolk was not substantially equal to that of a permanent publisher in another location. Notably, for the reasons set forth in Section V(B) of this Opinion and Order, Collins cannot compare her activities in Norfolk to those of other employees in North Carolina, as the Equal Pay Act precludes comparison of jobs across establishments. Collins has set forth no reason to broaden the meaning of establishment beyond the typical construction of a physically distinct workplace. Second, Collins' duties as general manager, while working in Norfolk and not substituting as a temporary or permanent publisher, were vastly distinct from those of the permanent publishers. Third, Collins' financial responsibility as general manager in Norfolk was different from that borne by permanent publishers. To the contrary, the permanent and temporary publisher positions are substantially equal in terms of obligations and responsibilities. Particularly, the Court notes Collins served as a temporary publisher in Jacksonville from July of 2004 until September of 2004. Doc. 15, Ex. 2 at ¶ 12. During that time, she worked at the same establishment as her comparators, Wilson and Connors. Doc. 10, Ex. 1 at 133; Doc. 10, Ex. 2 at ¶ 30; Doc. 10, Ex. 4 at ¶¶ 1, 3; Doc. 15, Ex. 22 at 26-29. Contrary to the assertion of Eisenbeiss, Collins states she earned 15.4% less than Wilson for equal time worked in 2004. Doc. 10, Ex. 2 at ¶¶ 26-27; Doc. 15, Ex. 2 at ¶ 32. Collins also alleges “Connors' total income for the period in which he worked for [Landmark] in 2004 was at least 30% higher than” Collins' income during that time period. Doc. 15, Ex. 2 at ¶ 35. While Defendant argues the jobs of start-up publisher and permanent publisher are different in terms of responsibility, financial liability and community commitment, Defendant furthers no similar argument or facts showing that the temporary and permanent publisher positions are distinct under the Equal Pay Act. Doc. 10 at 15-24; Doc. 16 at 1-16. Rather, Defendant merely states “Plaintiff spent the vast majority of her time as general manager working from Norfolk,” while contrasting the general manager duties in Norfolk against the responsibilities of permanent publishers, and distinguishing the permanent and start-up publisher roles. Doc. 10 at 18, 15-24. The Court gives little weight to Collins' title of general manager in assessing the work she Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 43 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 performed in Jacksonville, North Carolina, from July of 2004 to September of 2004. Wheatley, 390 F.3d at 330; 29 C.F.R. § 1620.13(e). Additionally, the alleged facts show Collins was also saddled with her responsibilities in Norfolk while attending to the publisher role in North Carolina. However, these additional burdens do not bear against Collins. Brinkley-Obu, 36 F.3d at 342 n. 12 (citing 29 C.F.R. § 1620.13(e)). Defendant also argues Collins was paid equal to or better than her comparators during her period in North Carolina in 2004. Doc. 16 at 7. As Collins' declaration asserts, with specificity, that she was paid less that her comparators, a material issue of fact exists as to whether she was paid less. Doc. 15, Ex. 2 at ¶¶ 32, 35. Because there is no appreciable difference between the work performed by Connors and Wilson in North Carolina in 2004, and the work performed by Collins in 2004 in North Carolina, the Court concludes Collins has presented a prima facie case under the Equal Pay Act for the period of July of 2004 to September of 2004. D. Shifting Burden 1. Legal Principles *16 If the Plaintiff establishes a prima facie case against her employer, “the burden shifts to the employer to prove, by a preponderance of evidence, that the pay differential is justified by the existence of one of the four statutory exceptions set forth in [29 U.S.C.] § 206(d)(1).” Strag, 55 F.3d at 948 (citation omitted); EEOC v. Whitin, 635 F.2d 1095, 1097-98 (4th Cir.1980) (citations omitted). The burden shift in an Equal Pay Act case requires the Defendant to bear both the “burden of production and persuasion ... to show, by a preponderance of the evidence, that the wage differential resulted from one of the allowable causes enumerated by the statute.” Brinkley-Obu, 36 F.3d at 344 (citing Fowler v. Land Mgmt. Groupe, 978 F.2d 158, 161 (4th Cir.1992)). These exceptions include “(1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex.” Strag, 55 F.3d at 948 (citation omitted); 29 U .S.C. § 206(d)(1). The Court may consider evidence of the competing experience and qualifications of the comparator(s) and Plaintiff, their relative salary histories, and the research undertaken by the employer to reach the salary given to the Plaintiff, in determining whether Defendant has established sufficient evidence of a differential based on any factor other than sex. Brinkley v. Harbor Recreation Club, 180 F.3d 598, 614-15 (4th Cir.1999); Cullen, 338 F.3d at 702-03 (considering respective qualifications, previous salaries and the amount of revenue created by the Plaintiff and comparator in assessing the Defendant's affirmative defense under the EPA, as well as weighing the market forces affecting the comparator's hiring). Lastly, if the burden is met by the employer, “the plaintiff's claim must fail unless the plaintiff can satisfactorily rebut the defendant's evidence.” Strag, 55 F.3d at 948. Thus, “[w]hen the defendant produces [ ] evidence supporting its affirmative defense, the burden of production shifts back to the plaintiff who must come forward with specific facts showing that there is a genuine issue for trial.” Brinkley, 180 F.3d at 614 (citation and internal quotations omitted). Plaintiff may adduce evidence showing Defendant's explanation is false or pretextual, from which the fact finder may infer a discriminatory motive by the employer. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Furthermore, “a motion for summary judgment may not be defeated, however, by evidence that is merely colorable or is not significantly probative.” Brinkley, 180 F.3d at 614 (citation and internal quotations omitted). Plaintiff's prima facie case, Defendant's case in response, and Plaintiff's rebuttal case may all be considered at the summary judgment stage. Strag, 55 F.3d at 950-51; Brinkley, 180 F.3d at 614 (citations omitted). 2. Analysis *17 If the Court finds Plaintiff has shown a prima facie case under the Equal Pay Act, the Defendant may still prevail on summary judgment by meeting its burden to persuade and produce evidence that its decision to pay Collins less than comparable male employees was justified for non-discriminatory reasons. Landmark has presented evidence that the differential is based on factors other than sex. Particularly, Landmark has noted the qualifications of Wilson were drastically superior to Collins' credentials. Moreover, Collins has never earned more than $65,000 per year, by her own admission, other than when employed by Landmark. By contrast, Connors earned over $100,000 per year during his career before working for Landmark. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 44 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 The disparities in qualifications and previous salaries serves as a proper basis for the pay differential under the Equal Pay Act. Additionally, once Collins complained that her salary was deficient, Landmark conducted a market survey of others at different organizations who held similar positions. The result of the survey showed that Collins was overpaid. The survey's conclusion verify that Collins was appropriately compensated for her efforts at Landmark. Also, the relative financial risks born by the permanent publishers were far greater than the risk ever shouldered by Collins as general manager. Regarding Defendant's rebuttal evidence, the Court cannot state as a matter of law that Defendant will meet its burden of persuasion in showing non- discriminatory reason(s) for its pay decisions regarding Collins. Accordingly, in light of Defendant's burden of persuasion in regards to its case in rebuttal, the Court concludes material issues of fact exist requiring the determination of a fact finder. E. Conclusion For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED as to the Equal Pay Act claim. VI. TITLE VII CLAIM Title VII provides “[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex.” 42 U.S.C. § 2000e-2(a). In a Title VII case, a plaintiff may either introduce direct or circumstantial evidence of discriminatory intent, or establish its case under a burden shifting scheme similar to that which is used by the Equal Pay Act. Brinkley, 180 F.3d at 606-07 (citations omitted). A. Evidence of Discriminatory Intent 1. Legal Principles Regarding direct proof of discriminatory intent, “[w]hat is required is evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Brinkley, 180 F.3d at 607 (citing Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995)). “If such evidence is lacking,” the plaintiff may still proceed by establishing a prima facie case, and adequately refuting any rebuttal evidence offered by Defendant. Brinkley, 180 F.3d at 607 (citation omitted). “To survive summary judgment on the basis of direct and indirect evidence, [plaintiff] must produce evidence that clearly indicates a discriminatory attitude at the workplace and must illustrate a nexus between that negative attitude and the employment action.” Brinkley, 180 F.3d at 607 (citations omitted). Isolated derogatory comments will not suffice to establish either a discriminatory attitude or a nexus to the employment action. Brinkley, 180 F.3d at 608 (citations omitted). 2. Analysis *18 By her own admission, Collins states she believes Eisenbeiss did not intentionally or maliciously discriminate against her because of her gender. Her declaration, apparently offered to refute her earlier sworn testimony, confirms her statement by tending to show that Eisenbeiss, at most, discriminates subconsciously against women. To allow the declaration to stand for more is to allow Collins to create a sham issue of fact by contradicting herself. Aside from her admission regarding Eisenbeiss, Collins merely asserts, without additional facts, that another female may have been treated differently than male employees. To the contrary, other Landmark employees confirm that Eisenbeiss did not treat employees differently according to their gender. Accordingly, there is insufficient direct evidence of intentional gender discrimination in this case, and no reason to conclude that any gender bias affected Eisenbeiss' employment decisions regarding Collins. As such, the Court finds Collins cannot establish her Title VII claim by showing evidence of statements or conduct clearly indicating a gender bias and bearing on a discriminatory employment decision against Collins. B. Prima Facie Case and Burden Shifting Scheme Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 45 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 1. Prima Facie Case Where direct evidence of intentional gender discrimination is not shown, a plaintiff asserting a violation of Title VII “must establish a prima facie case of discrimination.” Brinkley-Obu, 36 F.3d at 343. “Under Title VII, a prima facie case of sex discrimination requires showing a connection between sex and the adverse employment decision.” Brinkley-Obu, 36 F.3d at 343 (citation omitted). “The plaintiff may establish a prima facie case by demonstrating that she is female, i.e., a member of a protected class, and that the job she occupied was similar to higher paying jobs occupied by males.” Brinkley-Obu, 36 F.3d at 343 (citation omitted). In a Title VII claim, as compared to an action under the Equal Pay Act, “there is a relaxed standard of similarity between male and female-occupied jobs.” Brinkley-Obu, 36 F.3d at 343 (citations and internal quotations omitted). However, in a Title VII action, “a plaintiff has the ultimate burden of proving an intent to discriminate on the basis of sex.” Brinkley-Obu, 36 F.3d at 343. 11 2. Burden of Production Shift to Defendant In Title VII cases, in distinction to Equal Pay Act claims, only the burden of production shifts to the Defendant after a prima facie case is presented by the Plaintiff. Brinkley-Obu, 36 F.3d at 344 (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (“the allocation of burdens and the creation of a presumption by the establishment of a prima facie case [in a Title VII case] is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.”)); Burdine, 450 U.S. at 253 (“The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”). Defendant may attack Plaintiff's prima facie case by asserting any of the affirmative defenses detailed in the Equal Pay Act, 29 U.S.C. § 206(d)(1) 12 , as well as by showing the pay disparity resulted from the application of a “professionally developed ability test” or by “articulat[ing] some legitimate, nondiscriminatory reason for the employee's [disparate treatment].” 42 U.S.C. § 2000e-2(h); Burdine, 450 U .S. at 253. *19 “Once the defendant offers a non-discriminatory justification for the wage differential, the burden of persuasion remains on the plaintiff to demonstrate that the proffered explanation is pretextual and that the defendant was actually motivated by discriminatory intent.” Brinkley-Obu, 36 F.3d at 344 (citing Burdine, 450 U.S. at 253). The plaintiff may meet its burden of showing discriminatory intent “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's profered explanation is unworthy of credence.” Brinkley- Obu, 36 F.3d at 344 (citation omitted); Reeves, 530 U.S. at 148, 142-149 (“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”). In order to prove an intent to discriminate, the Plaintiff must do more than merely show unequal pay periods. Gustin v. West Virginia Univ., 63 Fed. Appx. 695, 699 (4th Cir.2003) (unpublished). 3. Similarity Between Jobs Under Title VII, the Plaintiff does not have to show the same level of similarity between her job and those of male comparators as under the Equal Pay Act. Brinkley-Obu, 36 F.3d at 343 (citation omitted). Rather, the Plaintiff must show “a relaxed standard of similarity between male and female-occupied jobs.” Brinkley-Obu, 36 F.3d at 343 (citations and internal quotations omitted). This equivalence is established by showing “that the positions require the same type of tasks.” Rapson, 2004 U.S. Dist. LEXIS 12579, at *14 (internal quotation and citation omitted). Absent otherwise proving discriminatory intent, Title VII does not redress claims that one job should be paid more than another dissimilar job. Wheatley, 390 F.3d at 335 n. 2 (“The trial judge noted that ‘perhaps one could make a policy decision that the head of Emergency Services should be paid the same as the head of Public Works.’ But to say that Title VII requires such an outcome is a different matter altogether.”). 4. Analysis Regarding Collins' prima facie case under the Title VII burden shifting scheme, Collins clearly is a member of a protected class. Additionally, while her burden Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 46 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 in comparing her position as general manager to the permanent publisher jobs is relaxed, the same evidence would still guide the Court's analysis. For this reasons stated in Section V(C) of this Opinion and Order, which applied a more exacting standard, the Court regards the alleged facts as properly making out a prima facie case under Title VII. As Collins has presented a prima facie case under Title VII, the burden of production shifts to Landmark to establish a non-discriminatory reason for the pay disparity. As stated in Section V(D) of this Opinion and Order, Defendant has showed several non-discriminatory reasons justifying its pay decisions regarding Collins, including disparities between Collins' credentials, previous salaries and responsibility and those of her comparators. Also, Defendant conducted a market survey, which showed Collins was overpaid. *20 Most importantly, in a Title VII case, the Plaintiff always bears the burden of persuasion regarding intentional discrimination. Presently, there is no evidence from which to conclude that Landmark, through Eisenbeiss, intentionally discriminated against Collins on the basis of sex. In fact, Collins admits she does not believe Eisenbeiss acted with premeditation, intent or malice in making his employment decisions regarding her salary. 13 C. Conclusion Because Collins has adduced no evidence showing intentional discrimination, and rather has conceded that Landmark, through Eisenbeiss, did not act with a discriminatory intention, Collins' claim under Title VII must fail. Accordingly, Defendant's Motion for Summary Judgment as to the Title VII claim is GRANTED. VII. CONCLUSION For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED in part, and DENIED in part. Additionally, the Court GRANTS Plaintiff's Motions to Amend the Complaint and For an Extension of Time to File a Pleading. The Clerk is DIRECTED to mail a copy of this Opinion and Order to counsel of record. It is so ORDERED. All Citations Not Reported in F.Supp.2d, 2007 WL 2301549 Footnotes 1 This section does not necessarily include the entire procedural history of the case, but rather states those events which are relevant to the issue(s) before the Court. 2 The factual background section does not include all of the facts in this case as presented in the various exhibits filed with the Court, but only those which are relevant to the controversy before the Court. Additionally, the facts are construed in light of the legal parameters of the summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). Accordingly, where the Plaintiff has presented significantly probative evidence on a disputed factual point, the evidence is considered and presented in her favor. Also, the Court is concerned only with alleged Equal Pay Act violations which occurred after June 20, 2004, and Title VII claims based on misconduct occurring after June 10, 2004, due to the applicable periods of limitation. The June 20, 2004 date is two years prior to the filing of the Complaint. Doc. 1. This period is not tolled by the EEOC charge, contrary to the argument of Plaintiff. See Becker v. Gannett Satellite Info. Network, Inc., 10 Fed. Appx. 135, 138 (4th Cir.2001) (unpublished) (citing C.M. English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.1987)). June 10, 2004 is 300 days prior to the filing date of the EEOC charge. Doc. 16 at 17. Prior history is included, however, to show a full picture of the controversy. 3 The publisher in Jacksonville, North Carolina, oversees two newspapers, the Globe and the Rotovue. Doc. 15, Ex. 1 at 169-70 (Eisenbeiss Deposition dated February 9, 2007); Doc. 15, Ex. 2 at ¶ 7. 4 Eisenbeiss agreed that Collins' initial salary was set too low for her duties as start-up publisher, and increased her salary accordingly; this occurred in 2003, outside of the limitations period. Doc. 15, Ex. 1 at 177-78. 5 Collins assisted with publishers' budgets, but did not have authority to approve the budgets. Doc. 10, Ex. 1 at 82-83. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 47 of 48 Collins v. Landmark Military Newspapers, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 2301549 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 6 Lynch is not an adequate comparator because he never worked for the company, because he was offered a position with Landmark in 2003, outside of the limitations period, and for the reasons stated in Section V of this Opinion and Order. Doc. 16 at 23. Pennington is also not a valid comparator, as Collins' efforts in Texas occurred outside the limitations period. 7 The Supreme Court of the United States' recent opinion in Ledbetter v. Goodyear Tire & Rubber Co., Inc., No. 05-1074, slip op. at 21 (May 29, 2007), does not affect the accrual period of the Equal Pay Act. 8 To the extent Collins' recent declaration contradicts her earlier deposition testimony, the Court concludes the declaration is of no weight, as it appears offered merely to create a sham issue of material fact which is not permitted for the reasons stated in Section IV of this Opinion and Order. 9 The Code of Federal Regulations defines “wages” broadly to include “all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name.” 29 C.F.R. § 1620.10. 10 Brinkley-Obu, 36 F.3d at 343 (“The equal work standard does not require that compared jobs be identical, only that they be substantially equal.”) (citing 29 C.F.R. § 1620.13(a)); but see Wheatley v. Wicomico County, 390 F.3d 328, 332, 333 (4th Cir.2004), cert. denied, 544 U.S. 1032, 125 S.Ct. 2253, 161 L.Ed.2d 1058 (2005) ( “In interpreting the EPA, ‘equal means substantially equal.’ ... In enacting the EPA, Congress chose the word ‘equal’ over the word ‘comparable’ in order ‘to show that the jobs involved should be virtually identical, that is ... very much alike or closely related to each other.’ ”) (citations omitted). 11 As noted in Section VI(A) of this Opinion and Order, an insufficient showing of similarity between male and female jobs should not preclude a Title VII action in cases where a discriminatory intent is shown. County of Washington v. Gunther, 452 U.S. 161, 178-79, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) (“Congress surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII [for failure to show a sufficient male comparator].”). 12 These exceptions include showing the pay disparity resulted from: (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex. 29 U.S.C. § 206(d)(1). 13 Defendant cites Brewster, 788 F.2d at 992-93, for the proposition that Plaintiff's admission to not believing her supervisor intentionally discriminated against her is fatal to her case. However, Brewster deals with the situation where the defendant believed it was complying with the law as evidence that defendant did not intend to discriminate; accordingly, Defendant's reliance on Brewster is misplaced. 788 F.2d at 992-93. Despite the misapplication of Brewster, the force of Defendant's argument is not diminished. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-01221-SHR Document 23-1 Filed 09/12/16 Page 48 of 48