Elizabeth Polak v. Virginia Department of Environmental Quality

57 F.4th 426

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 17, 2023
• Docket: 21-1848
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1848

ELIZABETH POLAK, individually and on behalf of persons similarly situated,

Plaintiff - Appellant,

and

DEBRA TRENT; NICOLE TILLEY; LYNNE E. SMITH; CASSAUNDRA M. PORTER; LEANN K. MORAN, individually and on behalf of persons similarly situated; VALERIE MCGEE; SARAH T. LONG; LAUREN LINVILLE; SHERYL A. KATTAN, individually and on behalf of persons similarly situated; ROBINA F. JORDAN; REBECCA SUE HINES; KAREN HALEY-WINGATE; MARYBETH M. GLASER; CASSANDRA FRYSINGER; HEATHER Z. EVANS; JUNE R. ERWIN; LISA A. ELLIS; PAMELA DERK; D. LAURA CORL; ROSALIND A. CHAPLIN; BRENDA L. BROWN; BETSY K. BOWLES; SHARON ALLEN; JOY D. ABEL; ELIZABETH C. ABE, individually and on behalf of persons similarly situated,

Plaintiffs,

v.

VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY,

Defendant - Appellee,

VIRGINIA DEPARTMENT OF HUMAN RESOURCE MANAGEMENT, VDHRM/COMMONWEALTH OF VIRGINIA,

Party-in-Interest. USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 2 of 10

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:20-cv-00270-JAG)

Argued: October 26, 2022 Decided: January 17, 2023

Before NIEMEYER, DIAZ, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Diaz and Judge Rushing joined.

ARGUED: Tim Schulte, SHELLEY CUPP SCHULTE, P.C., Richmond, Virginia, for Appellant. Brian Garth Muse, SANDS ANDERSON, PC, Richmond, Virginia, for Appellee. ON BRIEF: Sydney E. Rab, SYDNEY E. RAB LAW FIRM, Richmond, Virginia; Timothy E. Cupp, SHELLEY CUPP SCHULTE, P.C., Harrisonburg, Virginia, for Appellant. Michelle S. Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Wade T. Anderson, SANDS ANDERSON, PC, Richmond, Virginia, for Appellee.

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NIEMEYER, Circuit Judge:

Elizabeth Polak, a longtime employee of the Virginia Department of Environmental

Quality (“DEQ”), commenced this action against DEQ, claiming that it paid her less than

it paid a male employee with the same position doing equal work, in violation of the Equal

Pay Act.

The district court entered summary judgment against Polak, concluding that she

lacked evidence to demonstrate that any higher-paid male employee was doing work

“virtually identical” to the work she was doing. Indeed, the court explained that the record

showed that the male employee whom Polak had identified as a comparator was doing

different and more complex work than she was, such that she could not show that she was

paid less for equal work.

Based on a careful review of the summary judgment record, we agree with the

district court and affirm.

I

For ten years, Elizabeth Polak was employed by DEQ as a “coastal planner,”

executing federally funded Virginia programs for coastal management. The federal funds

were provided through specific grants that had to be applied for each year, and Polak’s role

involved managing some of those grants.

Polak was hired in May 2009 and served on a team of six members, one of whom

was the Program Manager, Laura McKay. Polak was hired at a starting salary of $43,000,

which was a substantial increase over her former job but was near the bottom of the salary

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“pay band” for which her position qualified. Her pay, however, did increase over the years

such that she was paid $56,325 when she ended her employment with DEQ in 2019.

During her tenure at DEQ, Polak worked closely with Henry Moon, another coastal

planner on the team, who had been working at DEQ since 2002. Although Polak believed

that she and Moon had the same position and that they were doing essentially the same

work, Moon was paid more. At the time Polak left DEQ, Moon was paid $69,000 per year.

Polak and three other women commenced this action in April 2020 against DEQ,

alleging that it had been paying them, as well as other female employees, “lower wages

than those paid to their male colleagues for performing equal work,” in violation of the

Equal Pay Act of 1963, 29 U.S.C. §§ 206(d)(1) and 215(a)(2). Although Polak originally

brought her claim not only on her own behalf but also on behalf of a class of others similarly

situated, the class claims and other plaintiffs’ claims were dismissed without prejudice,

leaving only Polak’s individual claim in the case. Polak requested injunctive relief, as well

as damages consisting of back pay, liquidated damages, prejudgment interest, and a loss of

value under her retirement program.

After discovery, DEQ filed a motion for summary judgment, arguing that Polak, in

identifying Moon as a comparator, had “failed to identify an appropriate comparator

performing substantially equal work, as required under the Equal Pay Act,” and that, in any

event, “the salary differences between [Polak] and [Moon] [were] readily explained by

‘factors other than sex,’ specifically their respective prior pay histories.”

In an order dated July 7, 2021, the district court granted DEQ’s motion, relying

solely on the ground that Moon, the comparator Polak had identified, was not “a proper

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comparator” for purposes of establishing a claim under the Equal Pay Act. The court

acknowledged that “Polak and Moon both worked as coastal planners at DEQ’s central

office” but concluded that “the undisputed evidence show[ed] that they [did] not ‘have

virtually identical jobs.’” The court explained that a plaintiff in Polak’s position could,

with sufficient evidence, “establish that she and a purported comparator had substantially

similar jobs even though they did different tasks on different grants for different

stakeholders,” but it noted that Polak had failed to “cite evidence to establish that [kind of]

similarity” and had instead relied on only “general assertions” “at a high level of

abstraction.” In short, the court concluded that “Polak [did not] establish a prima facie . . .

claim [under the Equal Pay Act] because” a jury could not find that Moon was an adequate

comparator.

From the district court’s judgment, Polak filed this appeal.

II

Polak contends essentially that she presented evidence — relying mostly on her own

declaration — that created a question of fact for a jury as to whether Henry Moon was an

adequate comparator for her claim under the Equal Pay Act.

The Equal Pay Act prohibits an employer from “discriminat[ing] . . . between

employees on the basis of sex by paying wages to employees . . . at a rate less than the rate

at which [it] pays wages to employees of the opposite sex . . . for equal work on jobs the

performance of which requires equal skill, effort, and responsibility, and which are

performed under similar working conditions.” 29 U.S.C. § 206(d)(1) (emphasis added).

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An exception is provided, however, “where such payment is made pursuant to (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.” Id.

The Act, in short, “prohibits gender-based discrimination by employers resulting in

unequal pay for equal work.” EEOC v. Md. Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018).

To establish an Equal Pay Act claim, the plaintiff “must make an initial (i.e., prima

facie) showing of three elements: (1) the [employer] paid higher wages to an employee of

the opposite sex who (2) performed equal work on jobs requiring equal skill, effort, and

responsibility (3) under similar working conditions.” Spencer v. Va. State Univ., 919 F.3d

199, 203 (4th Cir. 2019). “This initial showing permits an inference that a pay disparity

was based on sex discrimination,” an “inference [that] stands even without the support of

any evidence of discriminatory intent.” Id. If a plaintiff establishes a prima facie case,

“the burdens of production and persuasion shift to the defendant-employer to show that the

wage differential was justified by one of the statutory defenses,” and if it fails to establish

such an affirmative defense, “the plaintiff will prevail.” Evans v. Int’l Paper Co., 936 F.3d

183, 196 n.6 (4th Cir. 2019).

This appeal focuses on the second element of a prima facie case — i.e., the

requirement that Polak establish that she and Moon, her proffered comparator, performed

“equal work” on jobs requiring “equal skill, effort, and responsibility.” We have stressed

with respect to that element that “[e]quality under the Act is a demanding threshold

requirement.” Spencer, 919 F.3d at 203. “Similarity of work is not enough”; instead, the

proffered “comparator [needs] to have performed work ‘virtually identical’ (or the apparent

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synonym, ‘substantially equal’) to the plaintiff’s in skill, effort, and responsibility.” Id. at

203–04 (emphasis added); see also Evans, 936 F.3d at 196 (noting that the plaintiff and her

comparator “must have virtually identical jobs”); Wheatley v. Wicomico Cnty., 390 F.3d

328, 333 (4th Cir. 2004) (“In enacting the [Equal Pay Act], Congress chose the word

‘equal’ over the word ‘comparable’ in order to show that the jobs involved should be

virtually identical, that is very much alike or closely related to each other” (emphasis

added) (cleaned up)).

Thus, to establish equality of work, it is “[g]enerally . . . not enough to simply show

that the comparator[] hold[s] the same title and the same general responsibility as the

plaintiff.” Evans, 936 F.3d at 196. Stated otherwise, “a plaintiff may not rely on broad

generalizations at a high level of abstraction.” Spencer, 919 F.3d at 204; see also Wheatley,

390 F.3d at 332–33 (rejecting the plaintiffs’ argument that the managers of a county’s

eleven different departments all performed equal work and explaining that while, “at a high

level of abstraction[,] these positions all require[d] [department] directors to do the same

thing — supervise, coordinate, and organize” — “the [Act] demands more than a

comparison of job functions from a bird’s eye view”). And this requirement to rely on

“more than broad generalities” has particular resonance in an employment context “where

the work is an exercise in intellectual creativity that can be judged only according to

intricate, field-specific, and often subjective criteria.” Spencer, 919 F.3d at 205.

The record in this case shows that Moon and Polak were both coastal planners who

were members of the team supervised by McKay, the Program Manager, and that they

worked closely together and collaborated on issues of planning, grant progress, and

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program performance. Thus, the general description of their work was similar. Even so,

the record also showed that they had many different responsibilities involving different

projects and grant recipients. In particular, Program Manager McKay testified that Moon

had expertise in coastal hazards, sea level rise, and shoreline erosion and that Polak did not

have the same “kind of background or experience” in those topics. Based on his expertise,

Moon was responsible for “facilitating implementation of the . . . Section 309 Coastal

Hazards Strategy, including annual grants and projects of special merit.” McKay testified

that Polak was “not qualified” to perform that responsibility. Another duty that Moon

performed that Polak did not was “assisting in developing and submitting new narrative

enforceable policies and managing grants to the William & Mary . . . Coastal Policy Center

to assist in this effort.” Moon was also solely responsible for “represent[ing] Virginia on

the [Mid-Atlantic Regional Council on the Ocean] Climate Change Action Team.” And

he similarly had “responsibilities for managing aspects of the [Coastal Zone Management]

program related to the National Estuarine Research Reserve System,” which Polak did not

do. Finally, Moon helped organize “a marsh vulnerability assessment and adaptation

strategy summit,” for which Polak had no responsibilities.

The record shows similarly that Polak carried out duties that Moon did not have.

She managed certain grants to the Virginia Department of Conservation and Recreation

and helped “implement the Section 309 Cumulative and Secondary Impacts strategies.”

She also organized a statewide Working Waterfronts Summit that “resulted in development

of the first Working Waterfronts Plan in Virginia.”

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Based on her understanding of what Moon did, Polak stated in her declaration that

she and Moon filled “complementary” roles while having “equal” duties and “essentially

the same job.” But Polak could not have full comparative knowledge of both Moon’s job

and hers, as they each performed their work simultaneously in different contexts and on

distinct projects to which each were assigned. She did acknowledge, however, that McKay,

who was her “direct supervisor and boss at DEQ,” “controlled the work performed by Mr.

Moon and controlled the work that [Polak] performed.” Polak thus implicitly

acknowledged that McKay’s knowledge of the similarities and differences between the

jobs performed by Moon and Polak was unique. And McKay’s superior perspective

therefore was also critical to the resolution of Polak’s claim under the Equal Pay Act.

In her declaration, Program Manager McKay testified to the jobs and relevant

responsibilities of both Moon and Polak, noting that because of his background and

experience, Moon was doing different and more complex assignments than those given to

Polak. McKay stated, “Moon had more experience than Polak with respect to coastal

planning policymaking and the updating of enforceable policies of the [Coastal Zone

Management] [p]rogram. . . . Because he had more experience, Moon worked on more

challenging issues related to the [Coastal Zone Management] program than Polak and

handled more difficult and complex grant application assignments.” (Emphasis added).

McKay also listed numerous tasks that Moon but not Polak was assigned to perform.

Because Polak did not have the same vantage point as McKay, Polak could not

assess the differences in Moon’s work to which McKay testified, nor could she assess the

relative complexity of his work. Thus, she did not — indeed, could not — rebut McKay’s

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testimony. Rather, Polak relied on her own more limited perspective, giving her opinion

that the roles she and Moon filled “were complementary and [their] duties equal” and that

she and Moon had “essentially the same job.” But even with that very general conclusion,

she could not dispute McKay’s testimony that Moon not only did different work but he also

“worked on more challenging issues” and “handled more difficult and complex grant

application assignments” than did Polak.

Based on that record, the district court did not err in concluding that Polak could not

establish that she and Moon performed “equal work.” To be sure, Polak and Moon

performed similar work. But the differences in the actual work performed and the level of

complexity involved were significant enough that their work cannot be fairly described as

“substantially equal” or “virtually identical,” as required to establish a claim under the

Equal Pay Act. Accordingly, we affirm the district court’s order granting summary

judgment to DEQ.

AFFIRMED