JORDAN THORNHILL v. WILLSCOT MOBILE MINI HOLDINGS CORP (2024)

PLAINTIFF'S SURREPLY IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Once an EPA plaintiff demonstrates unequal pay for equal work—as is undisputed here (Doc. 29 at 10; Doc. 35 at 11-12; Doc. 38 at 1)—the defendant is strictly liable unless it meets its “heavy” burden of proving an affirmative defense. Timmer v. Michigan Dep't of Corr., 104 F.3d 833, 843 (6th Cir. 1997); 29 U.S.C. § 206(d); (see also Doc. No. 35, at 10-13). Here, Defendant must show that a factor other than sex “ ‘in fact’ explains the wage disparity—not just that the reasons could explain it.” Briggs v. Univ. of Cincinnati, 11 F.4th 498, 511-12 (6th Cir. 2021).

Defendant's Reply does not argue that this is wrong standard. Instead, recognizing its critical error, it argues that it has met this standard. (Doc. 38 at 1-3.) This is untrue: Defendant's motion claims only that its unequal pay “can be easily explained” or “justified.” (Doc. 29 at 14-15.) Its Reply claims, for the first time, that Defendant articulated the actual reason: experience. (Doc. 38 at 2.) In doing so, it repeatedly misrepresents the record—the worst of which are detailed below—in an attempt to salvage the unsalvageable. This is not enough.

1. Plaintiff did not have less experience than the rest of her team.

First, Defendant claims that Ms. Thornhill “admits” and does not “even attempt to address” its claim that she had less experience than the rest of her team. (Doc. 38, at 2, 3, 4.) Defendant's credibility is severely undermined by the record, where Plaintiff directly and repeatedly addressed this claim. (Doc. 35, at 7, 15-17, 20; Doc. 36, at 12-13, ¶ 50.) In fact, Ms. Thornhill had more experience at WillScot and as a NAM than the majority of NAMs. (See Doc. 37-8; Doc. 35 at 7.)

Similarly, Plaintiff's belief of her unequal pay was reasonable because, among other things, (a) Luke Sheffield, who made discriminatory comments to Plaintiff in the context of the NAM promotion, set her salary (Doc. 31-1 at 75-77); (b) she earned about 20 percent less than Vincenzo Sgroi despite beating him out for the NAM promotion (Doc. 37-2 at 139:3-16, 141:25–142:6); and (c) three current or former employees of Defendant were shocked or surprised by Plaintiff's low salary (Doc. 31-8, ¶ 7 (Koch); Doc. 31-9, 91:23–92:5 (White); Doc. 37-1, ¶ 15 (Burch)).

2. Ms. Prack did not know the actual reasons for any pay decisions.

Second, Defendant claims that “not once did [Kim Prack] testify that WillScot has no knowledge of the factors considered when setting the base salary” for NAMs. (Doc. 38 at 2.) This is indisputably false: Ms. Prack testified repeatedly that she and Defendant had no knowledge, policy, or record of what factors contributed to pay differences for NAM salaries. (See Doc. 31-3 at 37:20-25, 39:19-21, 40:7-15, 49:2–51:10; 171:13–172:18, 196:7-17, 213:4-23; Doc. 35 at 6.)

In a misguided attempt to evade Ms. Prack's damaging sworn testimony, Defendant falsely claims that Plaintiff proposed that Ms. Prack complete a chart that considered the factors in setting NAM salaries instead of questioning her about it. (Doc. 38 at 3.) The Court need do no more than read the transcript to see what actually happened: Ms. Prack could not answer questions about NAMs' employment without looking up documents; rather than waiting for Ms. Prack to do so, counsel agreed she would produce the documents. (Doc. 31-3 at 191:9–194:1.) To accomplish this, Plaintiff's counsel sent a list of the names and information sought (which did not include reasons for pay), as requested by defense counsel.¹ Reasons for pay were discussed in the very next topic (Topic 31), with Ms. Prack confirming Willscot was not “aware of the specific facts that went toward a specific individual's pay being what it was.” (Id. at 194:2–196:17 and Ex. 6.)

3. Pay was not based on experience.

Third, Defendant claims, “Ms. Prack testified that when setting NAMs['] pay, the company looked at experience from both within – and prior to – WillScot.” (Doc. 38 at 2.) Again, simply reading the transcript shows Defendant's latest shifting justification is untrue.² In response to defense counsel's leading questions, Ms. Prack testified that experience and resumes “could ” have been considered. (Doc. 31-3 at 207:18–208:18 (cited by Doc. 38 at 1).) Even if this testimony said what Defendant claims (which it does not), it would constitute speculation and create credibility issues for the jury to decide because of Ms. Prack's sworn testimony admitting no involvement with or knowledge of how Ms. Thornhill's or any other NAMs' pay was set. (E.g., id. at 40:10-15, 49:24–51:10, 196:7-17 (generally); 172:12-18 (regarding Ms. Thornhill).)³

Finally, even if Defendant presented evidence that experience was an actual factor (which it has not), Plaintiff's Response points out many inconsistencies and fallacies in Defendant's “education and experience” excuse. (Doc. 35 at 15-17.) Defendant's only response to this is that “anyone can pick apart an individual's resume and notice differences.” (Doc. 38 at 3, fn. 3.) But showing these inconsistencies from which a jury could decide in Plaintiff's favor is exactly Plaintiff's burden, and defeats Defendant's motion. See Finch v. Xavier Univ., 689 F. Supp. 2d 955 (S.D. Ohio 2010) (summary judgment denied because jury could doubt that professional and educational backgrounds justified large pay differential between comparator and plaintiff).

Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2024, a copy of the foregoing was served through the Court's CM/ECF system upon the following individuals:

Jonathan O. Harris

John R. Adams

Jackson Lewis P.C.

611 Commerce Street, Suite 2803

Nashville, TN 37203

Telephone: (615) 565-1661

jonathan.harris@jacksonlewis.com

john.adams@jacksonlewis.com

FOOTNOTES

1.   What Defendant calls the “comparator chart” is not evidence in this case and was neither requested from nor completed by Ms. Prack. Rather, it was sent to defense counsel by Plaintiff's counsel as a professional courtesy in an email that expressly stated, “[Y]ou don't have to actually use this sheet, this is just to show you the info we needed from Topic 16 and to answer Jon's request for a list of specific names ․” (Doc. 40-3 at 1 (emphasis added).) The request—both in the deposition and in the email—was for documents, not a chart. (Id; Doc. 31-3 at 191:9–194:1.)It is nonsensical to argue that Plaintiff agreed that Ms. Prack could produce documents she had already testified unambiguously did not exist: “Q: Were there any documents that showed why salaries had been set the way they had? A: No.” (Id. at 51:1-10.)

2.   Defendant's new excuse is in direct contradiction to both Ms. Prack's declaration and Defendant's motion, which argue that male NAMs' “education and experience justify [their] base salary.” (Doc. 29 at 14-15 (emphasis added).) Defendant's education excuse is now notably absent.

3.   Only defense counsel suggested that resumes or LinkedIn profiles could show reasons for pay. Ms. Prack herself testified that reasons might be reflected in an employee's profile or in emails. (Doc. 31-3 at 51:1-10, 195:14–196:6, 212:3-14.) Defendant did not produce profiles or emails with this information. (E.g., id. at Ex. 1-2 (Lorino and Thornhill Success Factors profiles).)

Caraline E. Rickard