Jury to decide if women geologists were underpaid

Where the Virginia Department of Environmental Quality, or DEQ, argued that it paid a male remediation geologist more than women remediation geologists because of his length of service and the legislative salary increases he received as a state employee, but it failed to explain why frequent state wage increases did not translate into similar wage growth for the women, a jury will decide if they were underpaid because of their sex.

Background

Valerie McGee, Heather Evans and LeeAnn Moran, three current and former remediation geologists employed by the DEQ, assert that DEQ violated the Equal Protection Act or EPA, by paying them lower wages than male remediation geologists for equal work, requiring equal effort, skill and responsibility. They identify three male remediation geologists as comparators: Jonathan Newbill, John Spangler and William Whitlock. DEQ now moves for summary judgment. 

Analysis

To establish a prima facie case, “a plaintiff must demonstrate that ‘(1) the defendant-employer paid different wages to an employee of the opposite sex (2) for equal work on jobs requiring equal skill, effort, and responsibility, which jobs (3) all are performed under similar working conditions.” The record establishes, and DEQ does not dispute, that DEQ paid higher wages to the three identified male comparators than it paid to the three female plaintiffs.

The court finds that Newbill’s duties constitute significant additional work requiring effort, responsibility and time beyond the core duties required of all remediation geologists at DEQ. Accordingly, the court finds that Newbill does not perform substantially equal work to the plaintiffs and is not an appropriate comparator for plaintiff.

The court finds that the evidence establishes that the plaintiffs and Spangler share a common core of substantially equal work responsibilities which they perform under substantially similar conditions. Accordingly, the court concludes that Spangler is a valid comparator for plaintiffs. Finally, the court deems Whitlock a proper comparator for plaintiffs.

Accordingly, “the burdens of production and persuasion [now] shift to [DEQ] to show that the wage differential was [in fact] justified by” either “(1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any factor other than gender.”

Spangler

DEQ asserts that its reliance on Spangler’s previous, private-sector salary when it set his starting salary justifies the difference between Spangler and the plaintiffs’ wages today and, for Moran, until her retirement in 2020. 

The record shows that Spangler performed work with DEQ before they hired him as a full­time employee in 2007. Based on Spangler’s excellent performance and demonstration of the high-level skills necessary for handling challenging cases, DEQ wanted to hire him. And, because management at DEQ knew that Spangler made $57,000 as a senior environmental scientist in the private sector, they crafted an equivalent salary offer, pursuant to the compensation policy in effect at the time. The court therefore concludes that no rational jury could reject DEQ’s proffered defense that a factor other than sex explains Spangler’s higher wage.

Whitlock

According to DEQ, “Whitlock’s salary difference is explained by his length of service and the legislative salary increases he received as a state employee.” But “the EPA requires that a factor other than sex in fact explains the salary disparity.” On the record currently before the court, DEQ has not proven that Whitlock’s length of service and an unofficial policy of seniority explain his higher salary “so convincingly that a rational jury could not have reached a contrary conclusion.”

Although DEQ provides a detailed summary of Whitlock’s salary history, DEQ fails to explain why frequent state wage increases did not translate into similar wage growth for the plaintiffs, particularly Moran. Because the DEQ has not met their burden of persuasion, the court denies DEQ’s motion for summary judgment.

Willfulness

“A two-year statute of limitations applies to ordinary violations of the [EPA], but a three­year statute of limitations applies to willful violations.” Accordingly, a jury could not award damages for any violations occurring prior to April 21, 2019, unless DEQ willfully violated the EPA. The court finds that the plaintiffs have adduced sufficient evidence to raise a question for the jury as to whether any violation of the EPA by DEQ was willful. Accordingly, the court leaves this issue to the factfinder.

Defendant’s motion for summary judgment granted in part, denied in part. 

McGee v. Virginia Department of Environmental Quality, Case No. 3:21-cv-268, Aug. 30, 2022. EDVA at Richmond (Gibney). VLW 022-3-386. 27 pp.