Savignac v. Day

• Decision Date: 28 April 2021
• Docket Number: Civil Action No. 19-2443 (RDM)
• Citation: 539 F.Supp.3d 107
• Parties: Mark C. SAVIGNAC et al., Plaintiffs, v. Jones DAY et al., Defendants.
• Court: U.S. District Court — District of Columbia

539 F.Supp.3d 107

Mark C. SAVIGNAC et al., Plaintiffs,

v.Jones DAY et al., Defendants.

Civil Action No. 19-2443 (RDM)

United States District Court, District of Columbia.

Signed April 28, 2021

Mark C. Savignac, Urbana, IL, Pro Se.

Julia Sheketoff, Urbana, IL, Pro Se.

MaryEllen Powers, Christopher DiPompeo, Jones Day, Washington, DC, Anderson T. Bailey, Pro Hac Vice, Jones Day, Pittsburgh, PA, Terri L. Chase, Pro Hac Vice, Jones Day, Miami, FL, Traci L. Lovitt, Pro Hac Vice, Jones Day, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

The pending motion raises a question of first impression—or, more accurately, a question of second impression, since Plaintiff Julia Sheketoff asks the Court to reconsider its earlier opinion, which implicitly decided the question that Sheketoff now raises. That question is whether a prima facie case under the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), has two or three elements. In Sheketoff's view, EPA plaintiffs bear the initial burden of pleading (and later showing) that they were (1) paid less than employees of the opposite sex, (2) for work on jobs requiring "equal skill, effort, and responsibility" that are "performed under similar working conditions." Id. The burden then shifts to the employer to show that any pay differential was the product of a bona fide seniority or merit system, "a system which measures earnings by quantity or quality of production," or "any ... factor other than sex." Id. An employer might prevail, for example, if it can show that the plaintiff was paid less because she worked fewer hours or produced work of a lesser quality, but the employer bears the burden of proof on such a defense. In Defendants’ view, by contrast, EPA plaintiffs bear the additional burden of pleading (and later showing) that they (3) actually performed "equal work" on the equivalent job. That is, in Defendants’ view, EPA plaintiffs bear the burden of pleading (and showing) both that their jobs and their comparators’ jobs required equal efforts and that they and their comparators actually performed substantially equal work.

In the Court's earlier opinion, it at least implicitly adopted Defendants’ view, holding that Sheketoff failed to state an EPA claim because she did not "allege that she actually performed work ‘substantially equal’ to the work performed by her male comparators during the relevant period" of time. Savignac v. Jones Day , 486 F. Supp. 3d 14 (D.D.C. 2020) (" Savignac I " ). After reviewing the parties’ thorough briefs on reconsideration, the Court is now convinced that this reading of the statute is incorrect. As Justice Frankfurter famously observed: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters Nat'l Bank & Trust Co. , 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting). Bearing that aphorism in mind, the Court will GRANT in part and DENY in part Sheketoff's motion for reconsideration. The Court will grant her motion for reconsideration with respect to the applicable legal standard for pleading an EPA claim but will deny reinstatement of her EPA claim because she has not alleged facts sufficient to meet that standard. The Court will, however, grant Sheketoff leave to file an amended complaint addressing this deficiency within 14 days of this decision.

I. BACKGROUND

Because the Court has previously described Plaintiffs’ allegations at length, the Court will only briefly describe those allegations relevant to the pending motion. Plaintiffs, Mark Savignac and Julia Sheketoff, are married and both worked as associates for Jones Day's Issues & Appeals group from 2017 to 2019 (Savignac) and 2014 to 2018 (Sheketoff) in the firm's Washington, D.C. office. Dkt. 1 at 3 (Compl. ¶¶ 13–14); Savignac I , 486 F. Supp. 3d at 19. Sheketoff alleges that she experienced multiple forms of sex discrimination during her time at the firm. See Dkt. 1 at 8–17 (Compl. ¶¶ 58–135). As relevant to the pending motion, she claims that "beginning not later than July 2017 and continuing until [her] departure in August 2018, Jones Day paid [her] a lower annual salary than it pa[id] to male associates of the same level of seniority in the Issues & Appeals group in the D.C. office." Id. at 29 (Compl. ¶ 210). Accordingly, Sheketoff argues, "Jones Day discriminated against [her] on the basis of sex by paying her less than it paid male employees in its D.C. office for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions," contravening the EPA. Id. (Compl. ¶ 209).

The Court granted in part and denied in part Defendants’ motion to dismiss. Savignac I , 486 F. Supp. 3d at 45. With respect to Sheketoff's EPA claim, the Court started by rejecting several of Defendants’ arguments. The Court held, for example, that "the EPA does not require a plaintiff to plead or prove discriminatory intent" and that EPA plaintiffs are not required to "anticipate and fend off" affirmative defenses, such as an employer's purported reliance on a bona fide seniority or merit pay system. Id. at 30. The Court also rejected Defendants’ contention that Sheketoff was paid less based on her poor performance, noting that at the motion to dismiss stage a plaintiff's factual allegations must be accepted as true. Id. Nor was the Court persuaded that Sheketoff had failed to identify "a male comparator who earned more than" she did, explaining that she had alleged "that the raise that she received in 2017 ‘was smaller than the raises received by male associates in the Issues & Appeals group the same year;’ " that "her 2018 salary ‘was below the salaries of male Issues & Appeals associates whose salaries had been the same as [hers] prior to 2017;’ " and that " ‘[t]he jobs of Issues & Appeals associates of the same level of seniority are jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ " Id. at 31.

The Court nonetheless dismissed Sheketoff's EPA claim because she had "not adequately allege[d] that she was ‘doing substantially equal work’ to her comparators." Id. Most notably, the Court explained, Sheketoff had "fail[ed] to allege that she worked as many hours or otherwise worked as hard as those who were paid more than she was." Id. The nub of the Court's holding, and the nub of the issued presented by Sheketoff's motion for reconsideration, then appears in the next two sentences of the Court's opinion:

More importantly, there is a difference between alleging that a plaintiff and her comparators’ jobs require "equal ... effort" and alleging that the plaintiff and her comparators, in fact, performed "substantially equal work." Because Sheketoff fails to allege that she actually performed work "substantially equal" to the work performed by her male comparators during the relevant period, she fails to state an EPA claim.

Id. at 31–32. The Court, accordingly, dismissed Sheketoff's EPA claim, but granted her leave to file an amended complaint adding allegations regarding the comparability of the work that she and her comparators actually performed during the relevant time period. Id. at 32.

Rather than accept that invitation, Sheketoff filed a motion for reconsideration, arguing that while the Court correctly concluded that there is "a distinction between the requirements of a job (such as the skill, effort, and responsibility that the job requires) and any particular employee's personal performances in that job (such as her ‘quantity ... of production)," it erred in treating both considerations as part of the plaintiff's prima facie case. Dkt. 33 at 5 (emphases omitted). Instead, in Sheketoff's view, "only the former is part of the EPA's prima facie case," while the latter must be raised, if at all, as an affirmative defense. Id. Defendants have opposed that motion, Dkt. 36, and Sheketoff has filed a reply, Dkt. 40. Sheketoff also filed an amicus brief in a separate case against Jones Day pending in this Court, see Henderson v. Jones Day , No. 19-cv-945 (ECF No. 162), and Jones Day responded to that brief as well, see id. (ECF No. 166). The question is now ripe for decision.

II. ANALYSIS

A. Rule 54(b)

Before addressing the merits of the question presented, Defendants argue that Sheketoff has not satisfied the demanding standard for seeking reconsideration. For support, Defendants point to the Supreme Court's decision in Christianson v. Colt Industries Operating Corp. , which held that "courts should be loathe to" revisit issues already decided "in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’ "

486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California , 460 U.S. 605, 619 n.8, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (subsequent history omitted)). But Defendants fail to note that Christianson dealt with the law-of-the-case doctrine—not reconsideration of an interlocutory order under Rule 54(b) —or that Christianson itself recognized that "[a] court has the power to revisit prior decisions of its own ... in any circumstance." Id.

The Court agrees with Defendants that a motion for reconsideration is not the opportunity to relitigate issues that have been briefed and decided, and that a party seeking reconsideration must clear a high bar. See Pilkin v. Sony Interactive Enter. LLC , No. 17-cv-2501, 2020 WL 7339920, at *2 (D.D.C. Dec. 14, 2020) (listing the specific showings a movant generally must make to prove that justice requires reconsideration); Am. Waterways Operators v. Wheeler , No. 18-cv-2933, 2020 WL 7024195, at *5 (D.D.C. Nov. 30, 2020) (explaining that the movant must show that "reconsideration is necessary"); Stewart v. Panetta , 826 F. Supp. 2d 176, 177 (D.D.C. 2011) (...