CHARLES F. LETTOW, Judge.
Plaintiff, Marlene Jordan, an employee of the United States Department of Transportation, Federal Aviation Administration ("FAA"), alleges that she has been subjected to gender-based discrimination in pay in violation of the Equal Pay Act of 1963 ("Equal Pay Act"), 29 U.S.C. § 206(d). Specifically, she claims that she was paid less than a named male co-worker for performing substantially equal work. The government seeks partial dismissal of plaintiff's complaint for lack of subject matter jurisdiction on the basis that a portion of plaintiff's claims is barred by the statute of limitations pertinent to the Equal Pay Act, 29 U.S.C. § 255(a). The government has moved for summary judgment with respect to the remainder of Ms. Jordan's claims.
For the reasons stated below, the government's motion for partial dismissal is subsumed into its motion for summary judgment, which is GRANTED.
Plaintiff is an African-American woman. Compl. ¶ 3. She has been employed by the FAA since 1998 and currently works as a Management and Program Analyst in the Administrative Services Group at the Northwest Mountain Region Western Service Center in Renton, Washington. Compl. ¶¶ 3-4; see also Decl. of Marlene M. Jordan in Support of Pl.'s Response in Opp'n to Def.'s Mot. for Partial Dismissal and Summary Judgment ("Jordan Decl.") ¶ 2, ECF No. 35. Her remuneration is set within a pay band defined as the FAA's FV-343-H Series, H-band.
Ms. Jordan was first hired by the FAA on September 13, 1998 as a secretary. See Def.'s Mot. at 5 (citing A239-40 (Jordan's Complete FAA Employment History (Mar. 30, 2015)), A241 (Letter from Program Management Specialist to Jordan (Sept. 4, 1998)), & A242-44 (Notification of Personnel Action (Dec. 20, 1998))). Her base pay was set at grade 6, step 7 under the then-applicable "general schedule" for compensation and amounted to $26,710 per year. Id. On October 11, 1998, she was reassigned as a "certification records assistant (typing)," and her pay remained unchanged. See id. (citing A240 & A244). On December 6, 1998, Ms. Jordan received a promotion to the position of "program support assistant," at grade 7, step 6, with an increase in her base salary to $28,854. See id. (citing A240 & A245 (Notice of Personnel Action (Dec. 6, 1998))). Plaintiff also received general increases common to all FAA employees on January 3, 1999, January 2, 2000, and January 14, 2001, by 3.1%, 3.8%, and 2.7%, respectively, such that her base salary in January 2001 amounted to $32,621. See id. (citing A247 (Notice of Personnel Action (Jan. 2, 2000)), A248 (Notice of Personnel Action (Dec. 3, 2000)), & A249 (Notice of Personnel Action (Jan. 14, 2001))).
On September 23, 2001, plaintiff was promoted to "management and program analyst," and the FAA converted to the new core compensation system, placing her at the F-band. See Def.'s Mot. at 5 (citing A250 (Notice of Personnel Action (Sept. 23, 2001)) & A251 (Pay Setting Worksheet for FG to FV Moves (Aug. 30, 2001))). With the promotion, her managers decided to increase Ms. Jordan's base salary by 8% to $35,231, which was a bit below the $37,500 mid-point for the F-band at the time. See id. at 6 (citing A240, A250-51, & A254 (Core Comp. Plan Pay Bands (2001, 2002)). She received an additional raise on December 30, 2001, increasing her base salary to $37,073. See id. at 6 (citing A253 (Notice of Personnel Action (Dec. 30, 2001)) & A240). On September 22, 2002, she was promoted to the G-band and her managers elected to increase her base salary by 8% to $40,039. See id. After receiving a raise of 4.1% on January 12, 2003 and a promotion to the H-band with an 8% raise on November 16, 2003, Ms. Jordan's base salary increased to $45,015, which was $615 above $44,400, the bottom of the H-band. See id. (citing A260 (Notice of Personnel Action (Nov. 16, 2003)) & A261-64 (Justification for Promotion Increase Decision Tool & Background Materials)).
Ms. Jordan presently remains at the H-band, see Def.'s Mot. at 6, see also Jordan Decl. ¶ 2, although in 2007 and 2010, she received two temporary promotions to I-band positions, see Def.'s Mot. at 6 (citing A239-40). Since 2001, she has also received general "organizational success increases" awarded to most if not all FAA employees, but she has not received an individual merit-based "superior contribution increase." See id. at 4 & 6 (citing A265-75 & A277-303 (OCI Announcements, 2004-2015)). The "organizational success increases" have raised her base salary to $59,677. Id. at 6. The H-band currently ranges from $51,005 to $79,058. Id. Including locality pay for the Seattle area, her current pay amounts to $72,693 per year. Id. (citing A239).
In 2011, Ms. Jordan served as a staffing specialist on the Technical Operations and Service Center subteam within the Employee Services Team. See Def.'s Mot. at 17 (citing A1-2 (Jordan's Responses to Gov't Interrogs. (Mar. 12, 2015)) & A72-73 (Charts of Employee Service Team Work Assignments)); see also Pl.'s Opp'n at 2.
From 2011 until present, Ms. Jordan has been assigned on several details. On November 21, 2011, she began a three-month detail to the Business Services Group. See Def.'s Mot. at 17 (citing A88 (Jordan's Final Evaluation (Oct. 28, 2011))). During that time, she primarily attended training on use of new programs and completed data entry. See id. at 18. After the three-month period ended, she returned to the Technical Operations and Service Center subteam within the Employee Services Team in February 2012, before going on another detail to the Air Traffic subteam within the Employee Services Team in May 2012, where she was primarily responsible for completing training and data entry. See id. at 18-19. In late 2012, she returned to the Technical Operations and Service Center subteam and was assigned to the Los Angeles and Honolulu districts. See id. at 19. In October 2013, after the retirement and replacement of Ms. Johnson, the Employee Services Team's manager, Ms. Jordan began a second detail to the Air Traffic Team but was later removed from the team by her new manager, Mr. Jerome Woods. See id. at 19-20 (citing A312 (Woods Decl. (Apr. 3, 2015)) & A324 (Ex. B to Woods Decl.)). Upon her return to the Technical Operations and Service Center subteam, she was assigned to work on standard operating procedures and act as a back-up for the Service Center, and she was later assigned to the Salt Lake City and Technical Services districts. See id. at 20 (citing A38-40 & A81 (Work Assignment Chart)). Finally, in May 2014, after filing a complaint with the Equal Employment Opportunity Commission ("EEOC"), Ms. Jordan was placed on a third detail to the Office of Civil Rights, where she processed reports on external complaints and on the budget. See Def.'s Mot. at 20-21 (citing A40-41). In addition, she helped plan a conference, during which she primarily was responsible for communicating with hotels. See id. at 21.
Throughout the period from 2011 to 2014, Ms. Jordan also was responsible for several miscellaneous additional duties, including preparing a "PASS Tech" report every two weeks, updating numbers on a spreadsheet after checking them with the Federal Personnel Payroll System, serving as the back-up to the Service Center, attending job fairs, serving as the "focal" person for the student intern program until 2013, and serving as the "focal" person for emergency planning for the Administrative Services Group from 2012 to 2013. See Def.'s Mot. at 21-23 (citing A22-23, A25-27, & A32-35 (Jordan Dep. (Jan. 21, 2015))). These duties took up a relatively small proportion of Ms. Jordan's time and generally involved attending meetings, completing and scanning forms, and checking computerized systems. See id.; see also Pl.'s Opp'n at 12-13.
Mr. A was initially hired by the FAA in November 2010 after an extensive career in the Navy. See Def.'s Mot. at 6 (citing A45-46 (Mr. A Dep. (Jan. 20, 2015))). His first position was in the E-band with a base pay of $42,000 per year. See id. (citing A136 & A192 (Complete FAA Employment History for Mr. A (Mar. 30, 2015))). In January 2011, he was promoted and began a J-band "team lead" position on the Employee Services Team — the same team as plaintiff — and his base pay was set at $73,600, the bottom of the J-band. See id. at 7 (citing A49-50 (Mr. A Dep.)).
Mr. A currently serves as the staffing specialist for the Anchorage, Honolulu, and Oakland districts. See Def.'s Mot. at 9 (citing A53). About half of his time is dedicated to this responsibility. See id. (citing A304-07 (Mr. A Decl. (Apr. 3, 2015))). The other half of his time is spent on additional duties, including the following: (1) position-sensitivity coding for the air traffic organization's Western Service area;
In 2012 and 2013, Ms. Jordan filed complaints against her supervisor with the EEOC alleging discrimination based on race and sex and retaliation. See Jordan v. Foxx, slip op. at 6-7.
On December 19, 2013, pursuant to 42 U.S.C. § 2000e-5, Ms. Jordan filed a complaint in the federal district court in the Western District of Washington. See Jordan v. Foxx, No. 2:13-cv-02280-RSM (W.D. Wash. filed Dec. 19, 2013). In the district court case, she sought relief from discrimination based on sex and race through the invocation of the Civil Rights Act of 1964, Title VII, as amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 11, 86 Stat. 111, the Civil Rights Act of 1991, Pub. L. No. 102-66, § 114, 105 Stat. 1079, and the Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 5(c)(2), 123 Stat. 5 (codified at 42 U.S.C. § 2000e-16).
On December 16, 2013, Ms. Jordan filed a complaint in this court, alleging gender-based discrimination in pay in violation of the Equal Pay Act of 1963. She alleges that she and her male co-workers "perform equal work on jobs requiring equal skill, effort[,] and responsibility, and the jobs are performed under similar working conditions." Compl. ¶ 6. She additionally avers that the difference in pay between her and Mr. A "was not part of or occasioned by a seniority system, merit system[,] a system based on quantity or quality of production, or upon a legitimate `factor other than sex.'" Compl. ¶ 6. Instead, she claims that the pay differential "is the result of a discretionary decision made by the former supervisor of [her] unit . . . ." Compl. ¶ 6. As a result, Ms. Jordan claims that she "is now suffering and will continue to suffer irreparable injury and monetary damages." Compl. ¶ 12. In terms of relief, she seeks the following: (1) "a judgment declaring that the acts, policies[,] and practices of the [government] are in violation of the laws of the United States;" (2) "equitable relief and compensatory and punitive damages including back pay, front pay[,] and benefits (including pre- and post-judgment interest) and liquidated damages to which [p]laintiff is entitled under the Equal Pay Act" amounting to not less than $41,358; (3) costs of suit, including attorney's fees and expenses; and (4) "such other and further relief as the [c]ourt may consider just and proper." Compl. ¶¶ 3-4. She seeks relief for the period from August 28, 2011 to present. See Def.'s Mot. at 16 (citing A1).
The government filed a motion for partial dismissal and summary judgment on April 13, 2015.
A hearing on the government's motion was held on June 24, 2015. The issues before the court are fully briefed and accordingly are ready for disposition.
The Equal Pay Act serves as a money-mandating statute that provides a basis for this court to exercise jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1). See, e.g., Harbuck v. United States, 378 F.3d 1324, 1330 (Fed. Cir. 2004) (noting that a plaintiff could "have filed her Equal Pay Act case in the Court of Federal Claims"); Thomas v. United States, 86 Fed. Cl. 633, 636 n.6 (2009), aff'd, 351 Fed. Appx. 433 (Fed. Cir. 2009); Cooke v. United States, 85 Fed. Cl. 325, 341 (2008), appeal dismissed, 325 Fed. Appx. 429 (Fed. Cir. 2009) ("The Equal Pay Act constitutes . . . a money-mandating statute over which this [c]ourt has jurisdiction.").
A claim brought under the Equal Pay Act must be filed within two years from the time of accrual. 29 U.S.C. § 255(a) (establishing a limitations period for claims under the Fair Labor Standards Act); see also Santiago v. United States, 107 Fed. Cl. 154, 158 (2012). However, where an employer willfully violates the Act, the limitations period is extended to three years. 29 U.S.C. § 255(a).
In general, a cause of action accrues "when all the events which fix the government's alleged liability have occurred and the plaintiff was or should have been aware of their existence." Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988) (emphasis in original); see also Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009); Katzin v. United States, 120 Fed. Cl. 199, 209 (2015). Under the Equal Pay Act, a claim accrues every time an allegedly insufficient paycheck is issued. See, e.g., Santiago, 107 Fed. Cl. at 159; Lange, 79 Fed. Cl. at 631; Weber v. United States, 71 Fed. Cl. 717, 725 (2006) (noting that "each and every paycheck that [plaintiff] received during the periods encompassed by her claims was allegedly lower than it otherwise should have been because of gender discrimination, and [plaintiff] has a resulting chain of claims derived from each pay period" and consequently, "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act") (emphasis in original) (internal citations and quotation marks omitted); see also Bearden v. Int'l Paper Co., 628 F.Supp.2d 984, 996 (E.D. Ark. 2007), aff'd, 529 F.3d 828 (8th Cir. 2008) ("A claim charging denial of equal pay accrues anew with each paycheck.").
A grant of summary judgment is appropriate when the pleadings, affidavits, and evidentiary materials filed in a case demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." RCFC 56(a). A material fact is one "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute is one that might "return a verdict for the nonmoving party." Id. If "the record taken as a whole [cannot] lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial,'" and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).
The burden is on the moving party to demonstrate the absence of genuine disputes. Accordingly, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita, 475 U.S. at 587-88 (alteration in original) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party may defeat summary judgment by presenting its own material facts that constitute more than "[m]ere denials or conclusory statements" and indicate "an evidentiary conflict created on the record." Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984). To establish "that a fact cannot be or is genuinely disputed," a party must "cite[] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." RCFC 56(c)(1)(A).
The government first avers that because Ms. Jordan filed her complaint in this court on December 16, 2013, any claims arising prior to December 16, 2011 are time-barred under the Equal Pay Act's two-year limitations period. See Def.'s Mot. at 39.
Under the circumstances presented, the court cannot accept Ms. Jordan's contention that there is evidentiary support for the proposition that the FAA's alleged violation of the Equal Pay Act was willful. As the government points out, plaintiff did not file her EEO complaint until February 8, 2013, almost a year and a half after August 28, 2011, the date on which she alleges the disparity became actionable. See Def.'s Mot. at 39. Moreover, the filing of a formal administrative complaint alone does not toll the statute of limitations for Equal Pay Act claims. See, e.g., Hickman v. United States, 10 Cl. Ct. 550, 552 (1986). Merely putting the FAA on notice of a pay discrepancy and the claimed applicability of the Equal Pay Act is not enough to establish that the FAA willfully violated the statute. See Santiago, 107 Fed. Cl. at 160 (noting that "willfulness requires more than mere awareness"). Finally, contrary to plaintiff's assertions, it is not the case that the FAA "t[ook] no steps to remedy the situation," Pl.'s Opp'n at 26; the FAA conducted an investigation and also arranged for plaintiff to serve on a detail in the Civil Rights Division, see Def.'s Mot. at 39 (citing A369-83 (FAA Report of Investigation (Aug. 5, 2013))). Ms. Jordan has put forth no meaningful evidence of willful disregard of plaintiff's claims by the FAA. Therefore, the two-year statute of limitations period applies, and plaintiff's claims arising prior to December 16, 2011 are time-barred.
The government has moved for summary judgment on Ms. Jordan's equal pay claims, asserting two primary grounds. First, the government argues that Ms. Jordan did not perform work that was substantially equal to the work performed by Mr. A because after his voluntary demotion, Mr. A continued to perform duties carried over from his J-band position that required more skill, effort, and responsibility than plaintiff's duties. See Def.'s Mot. at 30. Second, and in the alternative, the government argues that even assuming Ms. Jordan and Mr. A performed substantially equal work, the pay differential between them was nevertheless justified by two of the four exceptions set forth in the Equal Pay Act, viz., a merit system and "factors other than sex." See id. at 34-38; see also 29 U.S.C. § 206(d)(1)(ii), (iv) (excepting a payment made pursuant to "a merit system" and "a differential based on any other factor other than sex"); Hr'g Tr. 39:25 to 40:5 (June 24, 2015) ("We do make [the argument that the pay difference is justified based on a merit system] because part of the reason for the pay difference is that Ms. Jordan has not received merit-based superior contribution increases for the last 14 years.").
The Equal Pay Act prohibits employers, including the federal government, from discriminating in its pay practices on the basis of gender:
29 U.S.C. § 206(d)(1) (emphasis added).
Once plaintiff establishes a prima facie case, the burden then shifts to the defendant to show that the pay differential falls under one of the Equal Pay Act's four enumerated exceptions, County of Wash. v. Gunther, 452 U.S. 161, 169 (1981); Corning Glass, 417 U.S. at 196, namely, "(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).
To establish her prima facie case, Ms. Jordan has selected Mr. A as her comparator to demonstrate that she was paid less than a male for performing equal work. Plaintiff maintains that from August 28, 2011
Ms. Jordan first alleges that Mr. A's and her additional tasks required equal skill. In particular, plaintiff avers that many of Mr. A's additional tasks "such as drug test coding, FAIR Act reviews, in-position increases[,] and furlough review" required equal skill as plaintiff's tasks of drafting the PASS Tech biweekly reports and serving as the Service Center back-up. Pl.'s Opp'n at 21. In plaintiff's view, Mr. A's task of serving as centralized-selection-process back-up also required the same "interpersonal and communication skills" necessary for plaintiff's responsibilities with regard to student programs, job fairs, and serving as the Service Center back-up. Id. Second, Ms. Jordan claims that both employees' tasks required equal effort. Id. at 22. She observes that because "the manager regularly rebalance[d] every team member's workload (i.e. effort) so that everyone ha[d] a full plate and no one [was] overburdened," it therefore "logically follows that the total effort exerted by [plaintiff] and [Mr. A] [was] equal." Id.
In essence, Ms. Jordan has demonstrated that a pay differential existed between her salary and that of a male colleague, Mr. A, but nothing beyond that. She has alleged no other discriminatory treatment by her supervisor
Nonetheless, although the court is dubious that Ms. Jordan has fulfilled her burden of establishing that the work she has performed since December 16, 2011 is substantially equal to that performed by Mr. A, for purposes of analysis the court will assume that she has made out a prima facie case and turn to address the affirmative defenses put forward by the government.
The government asserts two affirmative statutory defenses to explain the pay discrepancy between Ms. Jordan and Mr. A: that the difference in pay was based upon a merit-based system and additional factors other than sex. Def.'s Mot. at 34; see also Hr'g Tr. 40:6-11. "To establish the merit-based system defense, defendant must demonstrate `that a merit system was an organized and structured procedure by which employees were evaluated systematically and in accordance with predetermined criteria.'" Brooks, 101 Fed. Cl. at 346 (quoting Raymond v. United States, 31 Fed. Cl. 514, 518 (1994)). Employees must be aware of the system, and it cannot be based upon sex. See id. (citing Equal Employment Opportunity Comm'n. v. Aetna Ins. Co., 616 F.2d 719, 725-26 (4th Cir. 1980)). While a merit-based system may compensate employees according to the quantity and quality of their performance, it need not be devoid of subjectivity. See id. (citing Aetna, 616 F.2d at 726). To establish the "factor other than sex" defense, the factor must be both "gender-neutral on its face and bona fide — that is, used in good faith and not in a discriminatory manner — in its application." Behm v. United States, 68 Fed. Cl. 395, 400 (2005) (citing Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989) ("The factor other than sex must also be bona fide. In other words, an employer cannot use a gender-neutral factor to avoid liability unless the factor is used and applied in good faith; it was not meant to provide a convenient escape from liability.") (in turn citing Goodrich v. International Bhd. of Elec. Workers, 712 F.2d 1488, 1493-94 n.11 (D.C. Cir. 1983))). In its analysis, the Court should apply deferential, "rational basis" scrutiny and should not question the wisdom of a particular policy. Id. at 401.
The government has adequately supported its affirmative defenses involving the FAA's compensation system, which takes into account both merit and factors other than sex. First, the government has sufficiently demonstrated that while the FAA's "core compensation system" imposes strict pay bands on employees' base salaries based on their positions, employees' pay levels within those bands are largely determined by merit. Every year, employees are eligible to receive individual, merit-based "superior contribution increases" amounting to 0.6% or 1.8%, and the FAA aims to award such increases to approximately two-thirds of its employees. See A218-19 (HRPM Core Comp.-2.4C Annual Pay Changes (Mar. 12, 2002)). Furthermore, upon promotion, employees are eligible for additional pay increases of up to 15% based on their performance. See A222. Rubrics and guidelines exist to aid supervisors in making their recommendations, see, e.g., A232-33 (Promotion Increase Decision Tool), and Human Resources manuals and other periodicals ensure that information regarding the FAA core compensation system is available readily to FAA employees. See, e.g., A193-204 & A215-17 (Human Resources Policy Manual (Mar. 12, 2002)).
The government has also established that Ms. Jordan's comparatively lower salary within the H-band can be explained in part by her individual merit. During her promotions in 2001, 2002, and 2003, plaintiff's supervisors awarded her increases of 8% in base pay, well below the 15% cap. See Def.'s Mot. at 34. In addition, plaintiff has not received a "superior contribution increase" since 2001, more than ten years before the filing of her complaint in 2013. See A43. Among other things, Ms. Jordan has not challenged her supervisor's decisions regarding her own receipt of promotional pay increases or superior contribution increases. See A7-19 (Pl.'s Resps. to Gov't Interrog. Nos. 6 & 7). Instead, she contests her supervisor's decision to allow Mr. A to maintain his higher base pay following his voluntary demotion. See Pl.'s Opp'n at 23 ("Ms. Jordan does not challenge how her pay has been historically set, only that the FAA applied its pay setting policies in a discriminatory manner when Ms. Johnson allowed [Mr. A] to retain his pay when he was demoted two whole pay bands."). Like the decisions regarding plaintiff's salary, however, the determination of Mr. A's pay can be explained by factors other than sex.
Mr. A was promoted to a J-band position in January 2011. See Def.'s Mot. at 7 (citing A49-50). At that time, the FAA's policy required that his pay be set within the J-band range, and it was established at the bottom of that range. When Mr. A was demoted, FAA policy allowed his supervisor to maintain his pay level so long as it fell within the H-band range. His supervisor used that permitted discretion to maintain his pay at the same level. In doing so, she provided reasons based on factors other than sex, including her expectation that Mr. A would continue to do higher-level work, her belief that Mr. A possessed skills and knowledge superior to employees in the H-band, and her intention to move him into an I-band position when one became available. See Def.'s Mot. at 37 (citing A136 & A147-50); see also Hr'g Tr. 18:1-10.
Therefore, even viewing the facts in the light most favorable to Ms. Jordan and assuming that she has made out a prima facie case, the government nonetheless prevails because the difference in pay is supported by factors other than sex, including a merit system, and Ms. Jordan has failed to raise any genuine issue of material fact to be resolved at trial.
For the reasons stated, the government's motion for partial dismissal is subsumed into its motion for summary judgment, and that motion is GRANTED. The clerk shall enter judgment for the government and against plaintiff.
No costs.
It is so ORDERED.
Martin v. United States, 96 Fed. Cl. 627, 630 (2011) (quoting 29 C.F.R. §§ 1620.15(a), 1620.16(a), 1620.17(a)) (internal quotation marks and citations omitted).
Supplemental App. to Def.'s Reply to Pl.'s Response to Def.'s Mot. for Partial Dismissal and Summary Judgment ("Def.'s Reply") ("Johnson Decl.") ¶ 7, ECF No. 36.
A minority of subsequent decisions in this court have applied Yant in a manner requiring a showing by plaintiff of some indicia of past or present discrimination in addition to a comparison with an employee of the opposite sex to establish an Equal Pay Act prima facie case. Compare Brooks, 101 Fed. Cl. at 346 ("Defendant believes that this precedent [in Yant] supports its view that merely pointing to a single comparator is insufficient to satisfy plaintiff's prima facie case, particularly when, as here, there are other male employees who earn less than she. We disagree."), and Martin, 96 Fed. Cl. at 631 (focusing on a differential in pay for equal or substantially similar work), with Branch, 101 Fed. Cl. at 415 (stating that to establish an Equal Pay Act violation, plaintiff must prove "past or present discrimination based on sex") (quoting Yant, 588 F.3d at 1374).
In addition, the standards of liability for an Equal Pay Act claim and a Title VII claim are sufficiently similar that "the failure to make out a prima facie case of gender based wage discrimination under Title VII also defeats a claim under the EPA." Crowder v. Railcrew Xpress, 557 Fed. Appx. 487, 494 (6th Cir. 2014); see also Hutchins v. International Board of Teamsters, 177 F.3d 1076, 1080 (8th Cir. 1999) ("The standard governing a claim of unequal pay for equal work is the same for Title VII and for the Equal Pay Act."). But in Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th Cir. 1987), abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the court observed that "[u]nlike the showing required under Title VII's disparate treatment theory, proof of discriminatory intent is not required to establish a prima facie case under the Equal Pay Act." See also Forsberg v. Pacific Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988) (requiring only that plaintiff demonstrate that "he or she did not receive equal pay for equal work" in establishing a prima facie case).
Solely for purposes of analysis of Ms. Jordan's case, the court will assume that verifying a pay differential between employees of the opposite sex for performance of substantially equal work is sufficient for plaintiff to satisfy her burden of establishing a prima facie case.
