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Jury to decide unequal pay claim

Virginia Lawyers Weekly//November 29, 2022

Jury to decide unequal pay claim

Virginia Lawyers Weekly//November 29, 2022

Where the Virginia Department of Environmental Quality, or DEQ, argued that a male permit writer was paid more than a female permit writer because of his prior salary, but the parties disputed whether DEQ’s disparate application of compensation policies to prospective employees of different sexes was based on a sex-neutral reason, a jury will decide the issue.


Sheryl A. Kattan and Joy D. Abel contend that their employer, the DEQ, violated the Equal Protection Act amendments to the Fair Labor Standards Act by paying them lower wages than comparable male employees for equal work, requiring equal effort, skill and responsibility. A defendant is entitled to summary judgment if the pay differential is based on any of the following: “(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.”

Each plaintiff identifies a single comparator: Kattan identifies Justin Brown, and Abel identifies Brian Wrenn. DEQ moves the court to grant summary judgment because the salary differences between the plaintiffs and their comparators are “explained by factors other than sex.”


The parties agree that one way an employee may secure a pay increase at DEQ is through a competitive salary offer. DEQ increased Brown’s salary in 2018 pursuant to a competitive salary offer. Accordingly, DEQ asserts that the ensuing pay discrepancy between Kattan and Brown was based on a factor other than sex.

Despite ample evidence that DEQ increased Brown’s salary exclusively and explicitly because of its determination that he received a competitive offer, the plaintiffs argue that summary judgment is improper because “DEQ did not investigate the nature of the salary offer, the duration of the job, the actual terms, or whether th[e] offer reflect[ed] the experience or skills required in [Brown’s] DEQ position.” The plaintiffs do not allege that DEQ denied such a salary increase to a female employee who received an offer similar to Brown’s or identify any other meaningful evidence of pretext.

The court finds that even if DEQ erred in approving a competitive salary offer increase to Brown in 2018, its “decision would still serve as a non-sex-based explanation for the pay disparity.” Because no rational jury could reach a contrary conclusion based on the undisputed facts presented, the court finds that DEQ is entitled to summary judgment as a matter of law as to Kattan’s claim.


For purposes of summary judgment, DEQ concedes that it hired both Wrenn and Abel as full-time permit writers in 2014 at significantly different starting salaries. DEQ asserts that the wage discrepancy was based on DEQ’s reference to Wrenn and Abel’s respective prior salaries. In Abel’s case, DEQ looked no further than Abel’s current salary as a temporary employee with DEQ itself. In Wrenn’s case, DEQ overlooked Wrenn’s 18-month stint as a personal trainer and instead used his North Carolina Department of Environmental and Natural Resources, Division of Water Quality salary from roughly 23 months prior as his “current salary” for compensation purposes.

The court finds that based on this evidence, DEQ does not establish that the wage disparity between Wrenn and Abel was in fact justified by DEQ’s reliance on prior salary as a sex-neutral metric. Here, a clear issue of material fact exists as to whether DEQ’s disparate application of compensation policies to prospective employees of different sexes was based on a sex-neutral reason.

DEQ also asserts that Wrenn’s salary offer reflected his many years of relevant experience for the position of Senior Permit Writer-Water. But close examination of the record also reveals a genuine issue as to whether a relevant experience differential existed between Wrenn and Abel, and, if so, whether it convincingly explains the discrepancy.

Abel asserts that her previous experience both with the Eastern Research Group and with DEQ as a part-time employee rendered her just as qualified-if not more so-to perform the actual duties required by the Permit Writer position as Wrenn. And, although Hawkins’ testimony generally reflects her current opinion that the salary differential makes sense in hindsight, absent from the record is anything which indicates how and why DEQ reached and justified the decision to pay Wrenn $12,000 more to perform the same “Senior” level job as Abel in 2014.

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

Kattan v. Virginia Department of Environmental Quality, Case No. 3:21-cv-803, Nov. 15, 2022. EDVA at Richmond (Gibney). VLW 022-3-522. 14 pp.

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