Federal jury to hear equal pay case

A federal jury will hear the case of three female geologists who claim the Virginia Department Environmental Quality, or DEQ, willfully paid men higher wages for work of equal skill, effort and responsibility.

The DEQ argued that the plaintiffs failed to identify appropriate comparators and that summary judgment was appropriate because the salary differences were readily explained by factors other than sex, including the DEQ’s long-standing reliance on prior salary history.

But Senior Judge John A. Gibney Jr. of the Eastern District of Virginia disagreed, finding that two of the comparators were appropriate for all three women.

“[A]lthough DEQ presents compelling evidence that [a] higher salary could be the result of factors other than sex … a genuine issue of material fact remains as to whether such permissible factors, in fact, explain the discrepancy,” the judge wrote.

The decision is McGee, et al. v. Virginia Department of Environmental Quality (VLW 022-3-386).

Remediation geologists

Valerie McGee, Heather Evans and LeeAnn Moran are current and former DEQ remediation geologists. They sued their employer for violating the Equal Protection Act, or EPA, by paying them lower wages than those paid to their male colleagues for equal work.

Evans was hired by the DEQ as a remediation geologist in December 2001 at a salary of $34,910. She currently makes $60,465.

McGee was hired by the DEQ as a compliance specialist in March 2000 and paid $39,516. She had earned $38,000 at her previous job. She transferred to a remediation geologist position in 2017 and is currently paid $69,951.

Moran worked for another state making $23,550 and was offered $26,339 by the DEQ as a remediation geologist in November 1992. She retired in January 2020 with a salary of $67,545.

Gibney found the core job duties of remediation geologists were to deal with leaking storage tanks, review reports and technical information to assess risk, communicate with the responsible parties, generate reports and, when needed, perform corrective site visits.

Although they could also respond to emergency situations, the judge found that most of the work done by the plaintiffs and their comparators was devoted to case management.

Gibney also noted that varying degrees of support staff could dictate how offices handled administrative workloads.

Finally, he found that although the DEQ currently uses “pay bands” to determine the minimum and maximum salaries for a given job, from 1988 until 2019 it employed different systems under which current salary was the primary factor.

Starting salaries

The plaintiffs claimed the DEQ used the salary offered to each of them by a prior employer, regardless of the amount, to determine starting pay. Although the DEQ stopped considering prior salaries in 2019, the plaintiffs alleged that nothing was done to remedy the existing wage disparities.

They identified three male remediation geologists as comparators: Jonathan Newbill, John Spangler and William Whitlock.

The DEQ offered Spangler, who had previously worked for a private contractor, $57,000 to be a remediation geologist in April 2007. He is currently paid $78,257.

Newbill started at the DEQ in 2014 at a salary of $63,000. He now makes $76,621.

Whitlock made $12,000 when he began working for the commonwealth in November 1979. He transferred to a remediation geologist position in July 2015, and his current salary is $85,026. He spends about 5% of his time providing “technical assistance” on certain matters.

Equal work

Gibney explained that a prima facie case under the EPA required evidence that the employer paid different wages to employees of the opposite sex for equal work in jobs that require equal skill, effort and responsibility and are performed under similar working conditions.

It was undisputed that the DEQ paid higher wages to the male comparators than it paid to the plaintiffs, so the judge moved on to determine whether all the employees performed substantially equal work.

Gibney concluded that Newbill wasn’t a valid comparator due to his service on an emergency remediation team.

But he said Spangler and the plaintiffs performed work requiring “equal skill, effort, and responsibility” under similar working conditions.

He was unpersuaded by the DEQ’s argument that because the plaintiffs perform additional duties that Spangler doesn’t, they don’t perform equal work.

“First, DEQ offers no evidence indicating that these additional duties lessen the number of cases that each plaintiff manages or otherwise affects the amount of work encompassed by the plaintiffs’ core job responsibilities,” the judge wrote.

“If an individual’s … claim could be defeated by showing that the plaintiff has additional duties that are not being performed by the employees of the opposite sex, employers could easily subvert the intent of the Act by assigning additional duties to potential plaintiffs.”

Gibney also found that Whitlock was a valid comparator, despite the “technical assistance” aspects of his job, because those duties “do not ‘consume a significant amount of his time.’”

Wage differences

Because the plaintiffs had established a prima facie case, the burden shifted to the employer to show the wage differences here were justified.

The DEQ argued that several factors justified Spangler’s and Whitlock’s higher wages, including Spangler’s private-sector salary and Whitlock’s length of service.

With regard to Spangler, Gibney sided with the employer, noting prior caselaw permitting the use of a comparator’s previous salary as an affirmative defense in an EPA case.

Here, the judge said, the record showed that the DEQ knew what Spangler made in the private sector and followed the compensation policy in effect at the time to offer him a comparable salary to persuade him to join the DEQ.

“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.”

However, the judge was not persuaded that Whitlock’s salary difference was sufficiently explained by his length of service and regular salary increases for state employees.

“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 plaintiff Moran,” Gibney wrote.

Further, although Whitlock didn’t receive a raise when he transferred into a remediation geologist position, “DEQ offers no contemporaneous evidence for why Whitlock was hired into that role earning at least $68,000 annually to perform the same job that Moran and Evans performed for less money.”

Because the DEQ did not meet its burden of persuasion, the judge denied its motion for summary judgment.

Finally, Gibney found the evidence was sufficient to create a jury question as to whether any violation of the EPA by the DEQ was willful.