Eleventh Circuit Affirms Summary Judgment in Gender Wage Gap Suit

Harrison Paige and Lev Craig

On February 27, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed the lower court’s ruling in Kalu v. Florida Department of Children and Families, a gender discrimination suit brought under the Equal Pay Act (“EPA”). The Eleventh Circuit affirmed the district court’s summary judgment in favor of the defendant, a Florida state hospital, finding that plaintiffs—two female nurse practitioners at the hospital—had failed to show that a $20,000 disparity between their pay and a male nurse practitioner’s salary constituted unlawful gender discrimination in violation of the EPA.

Plaintiffs Patricia Kalu and Susan Linder-Wyatt worked as nurse practitioners at a hospital managed by the Florida Department of Children and Families. When plaintiffs discovered that they made nearly $20,000 less than Michael Peel, a male nurse practitioner with identical job responsibilities, they filed suit in the United States District Court for the Northern District of Florida, alleging that the pay disparity between female and male nurse practitioners violated the EPA. The district court granted summary judgment, finding that plaintiffs had failed to show that the hospital’s pay disparity was discriminatory, and plaintiffs appealed to the Eleventh Circuit.

The EPA prohibits an employer from paying employees of one sex less than employees of the other sex for equal work performed in jobs requiring “equal skill, effort, and responsibility, and which are performed under similar working conditions.” Gendered differences in pay can be acceptable under the EPA, however, if they are 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.” To prevail on an EPA claim, a plaintiff must show that the employer’s gender-based discrepancies in compensation were not based on any of these permissible reasons under the EPA.

In Kalu, the hospital argued that Peel was paid a salary substantially higher than Kalu or Linder-Wyatt because of special circumstances surrounding his hire which constituted a legitimate differential under the EPA. The hospital cited its “critical need” for a new nurse practitioner due to a staffing crisis: an employee had recently left the hospital’s already limited staff, and the imminent departure of another employee had led to an intolerable workload for remaining staff members.

After publicly posting the job opening and receiving no responses, the hospital contacted Peel, who had previously been employed at the hospital, asking him to return to his former position due to the urgent need to fill the vacancy, especially in light of the hospital’s historic difficulty finding well-qualified applicants due to its particularly challenging patient population. Peel, who was earning a higher salary at his new employer than either Kalu or Linder-Wyatt was earning at the hospital, informed the hospital that he would only accept the position if he received a significant salary increase. The hospital agreed, and Peel was hired at a salary approximately $20,000 higher than either plaintiff’s.

Plaintiffs argued that this justification was pretextual, claiming that there was no “critical need” in the department, and that, consequently, the pay gap was unjustified: “there was a need, but not a critical need.” The court, however, was unpersuaded, finding that the evidence plaintiffs had presented to support this pretext theory—primarily, plaintiffs’ own testimony during depositions—did not create a genuine dispute of material fact. Rather, the Eleventh Circuit found that “the Department provided the raise because there was a critical need to fill the vacancy, Peel was the only applicant, he was well qualified, and he would not take the job without the raise. … Peel benefitted from good timing, but good timing is gender-neutral. It is a factor ‘other than sex.’” As such, the court found that the hospital had plausibly stated a permissible reason for a gendered pay disparity, and that plaintiffs could not show that that reason was pretext for gender discrimination.

If your employer has discriminated against you on the basis of a protected characteristic, including compensating you unfairly because of your gender, contact The Harman Firm, LLP.