Company defeats employee’s unequal pay claim

Where a female employee alleged that she was paid less because of her sex, but her only male comparator did not perform a similar job and she offered no other evidence suggesting the disparate pay was because of her sex, the company prevailed on the claim.

Background

Ashley Noonan claims that she suffered sex-based wage discrimination while working at Consolidated Shoe Company, and, what’s more, was retaliated against when she complained about it. Before the district court, she sought to show wage discrimination by comparing her wages to those of Matt Wiese, a male co-worker at Consolidated Shoe.

But Wiese, a graphic designer, had a meaningfully different role at the company than Noonan, a content creator and part-time photographer. Because the two did not perform similar jobs, Noonan could not rely on Wiese as a comparator to show wage discrimination. So the district court granted summary judgment to Consolidated Shoe.

Analysis

In her complaint, and before the district court, Noonan relied Wiese as a comparator. She argued that he performed a similar job but was paid more than she was paid. But the district court rejected that argument, finding that Wiese did not perform a similar job. Now, on appeal, Noonan has abandoned any argument that Wiese’s job was similar. And rightfully so — Wiese had a distinct job.

Of course, Noonan doesn’t need a male comparator to establish a prima facie case of pay discrimination. But she must still present evidence that reasonably creates an inference of an unlawfully discriminatory motive to shift the burden to Consolidated Shoe.

In an attempt to create this inference, Noonan points out that — based on her boss’s email — not only did Wiese make more money than she made, but he was also paid at the “local industry standard,” while the female employees in the marketing department were paid below that standard. From this, she argues the court can infer that the company discriminated against women.

In essence, Noonan argues that the so-called “local industry standard” creates some objective value of what marketing-department work was worth. And since she and two other female employees were paid less than this standard, whereas Wiese, the only male in the department, was not, the court should infer discriminatory animus.

But those other employees didn’t perform jobs similar to Wiese either. They all held different positions. The sum here is not more than its parts. What Noonan cannot show by comparing herself to one dissimilar male employee, she can’t show by comparing that same male co-worker to two other dissimilar employees either. So Noonan has not satisfied her burden of raising an inference of sex discrimination.

Retaliation

Noonan claims that she was retaliated against for raising concerns about sex-based wage discrimination, in violation of Title VII and the Equal Pay Act. She alleges three retaliatory acts: (1) Petrick’s threat to fire her; (2) Consolidated Shoe’s reduction in her job responsibilities, particularly doing fewer photoshoots and (3) the company’s declining to provide a letter of recommendation after letting her go.

The parties agree that Noonan engaged in protected activity when, armed with Wiese’s paystub, she confronted Petrick with accusations of sex-based wage discrimination. Still, she hasn’t pointed to evidence from which a reasonable jury could conclude she has met all three elements for any of the alleged retaliatory conduct because none of the actions she complains about were “both material and undertaken because of her complaints about salary equity.”

Affirmed.

Noonan v. Consolidated Shoe Company, Inc., Case No. 21-2328, Oct. 19, 2023. 4th Cir. (Richardson), from WDVA at Lynchburg (Moon). Johnneal M. White for Appellant. Monica Taylor Monday for Appellee. VLW 023-2-250. 16 pp.