Employment – Equal Pay Act

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Where a jury found in favor of a defendant employer under the federal Equal Pay Act, the trial judge’s decision to deny the plaintiff’s motion for a new trial should be affirmed despite the plaintiff’s contention that the employer failed to meet its burden to prove that the plaintiff was paid less than her male counterparts based on a factor other than sex.

“Michele Tourangeau moved for a new trial after a jury delivered a verdict in favor of her former employer, a beer and wine distributor, on eight employment-related claims that she brought against the company in the United States District Court for the District of Maine. She now challenges the motion’s denial. We affirm. …

“We begin with Tourangeau’s principal argument on appeal. She contends the record plainly shows that Nappi failed to meet its burden to prove that she was paid less than her male counterparts based on a ‘factor other than sex’ because the only basis Nappi gave for the decision to pay her differently was Nappi’s decision to ‘grandfather’ into a three-percent commission rate those wine sales representatives who had started working at the company before 2015. …

“Tourangeau reasons that to satisfy the ‘seniority system’ ground for deeming a pay differential ‘based on a factor other than sex’ a company must have had in place a ‘seniority system’ that meets certain criteria. …

“It is not clear that Tourangeau is right that a ‘seniority system’ must have the prerequisites in place that she identifies. … But even if she is, she still fails to explain why it would follow that a differential payment made pursuant to ‘seniority’ but not a ‘seniority system’ could not constitute a payment made pursuant to a ‘factor other than sex’ under the EPA.

“To be sure, Tourangeau points to authority that indicates that EPA defenses must be construed narrowly. … She also asserts in conclusory fashion that ‘“seniority” of any kind cannot be the basis for an affirmative defense to the unequal pay received by Tourangeau.’ But that latter contention is not self-evident, given that the EPA provides that an employer is not liable for differential payments made pursuant to not only a ‘seniority system’ but also ‘any other factor based on a factor other than sex.’ Thus, Tourangeau needs to explain why — given the text, purpose, or structure of the EPA — a differential payment made pursuant to ‘seniority’ but not a ‘seniority system’ — if the ‘seniority’ ground for the differential is not itself shown to have been based on sex — cannot be a differential made pursuant to a ‘factor other than sex’ just because it pertains to ‘seniority’ and was not made pursuant to a ‘seniority system.’ Tourangeau has not done so. …

“For all these reasons, we conclude that Tourangeau has not shown how the District Court’s findings were ‘so clearly against the law or the evidence, as to constitute a miscarriage of justice.’ … We must, therefore, reject Tourangeau’s challenge to the District Court’s denial of her motion for a new trial on the EPA claim insofar as the denial concerns the portion of the motion that challenged the sufficiency of the evidence underlying the jury’s verdict.”

Tourangeau v. Nappi Distributors (Lawyers Weekly No. 01-149-24) (49 pages) (Barron, C.J.) Appealed from the U.S. District Court for the District of Maine (Docket No. 23-1652) (July 25, 2024).

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