Female Assistant AG Can Pursue Gender Pay Claim

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By Hassan Kanu

June 6 — An assistant attorney general who was fired after repeatedly complaining that she was being paid less than the male lawyers in Virginia's Office of the Attorney General doesn't have a case for retaliation but can pursue her pay-disparity claims, a federal judge ruled ( Reardon v. Herring , 2016 BL 177793, E.D. Va., No. 3:16-cv-34, 6/3/16 ).

Ann Marie Reardon sued Attorney General Mark Herring, alleging she was paid less than male assistant attorneys general, including getting roughly $11,000 less than the lowest-paid male AAG in her section during 2014.

The state argued that Reardon isn't covered by the Equal Pay Act because she was politically appointed into a “policymaking” position, but the court said it's too early in the case to make that determination.

The “allegations in the Complaint lead to the inference that a somewhat complex hierarchy exists within the OAG, and that some AAGs may be ‘on the policymaking level' and some may not,' ” Judge Robert Payne of the U.S. District Court for the Eastern District of Virginia said in his June 3 decision. “Accordingly, the Complaint implicates the existence of factual issues that must be developed in discovery.”

The court's opinion illustrates the varied approaches federal courts use to determine whether a position is covered by the Equal Pay Act, which excludes individuals appointed “to serve on a policymaking level.”

Payne noted that the U.S. Court of Appeals for the Second, Seventh and Eighth circuits have different tests, and he said the Eighth Circuit strikes the best balance between protecting minority employees and protecting a state's ability to govern itself. The Third, Fourth, Fifth and Ninth Circuits “have not yet offered any guidance” on the issue, Payne observed. The Fourth Circuit hears appeals from federal courts in Virginia.

Paid Off Scale

Reardon was admitted to the Virginia bar in 1984, but she had only practiced law for eight years when she was hired by the Office of the Attorney General. The office classified attorneys based on the number of years they had been licensed to practice, the court said.

Reardon was classified as an AAG III with a starting salary of $62,000, although the pay scale set a $70,000 to $90,000 range. Her salary remained “far below” the minimum for her classification until her firing “less than three weeks” after the scale was updated in 2015, Reardon alleged.

The court outlined three approaches, but ultimately adopted the Eighth Circuit's test to determine coverage under the Equal Pay Act.

The standard requires consideration of: “1) whether the [appointee] has discretionary, rather than solely administrative powers, (2) whether the [appointee] serves at the pleasure of the appointing authority, and (3) whether the [appointee] formulates policy.”

Even after applying those factors, the court said, it's “simply too early to tell” whether Reardon is covered by the act.

The court said too much time passed between Reardon's last complaint and her firing, and she didn't have any other evidence to establish a retaliatory motive on her supervisors' part.

Thorsen Hart & Allen LLP represented Reardon. Isler Dare PC represented Virginia.

To contact the reporter on this story: Hassan Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com