Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PAY—D.N.J.: Jury to decide veterinary pathologist’s equal pay claims, (May 8, 2025)

By Todd Harrison, J.D.

She alleged that she was being paid less than two other pathologists, both men, because she was a woman.

Denying both parties’ motions for summary judgment on the federal and state pay discrimination claims alleged by a veterinary pathologist, a federal district court in New Jersey determined that the pathologist had failed to put forth evidence sufficient to show that she was performing “substantially equal” work as her coworkers. The pathologist largely relied on the testimony of an HR employee who stated that the work performed by all of the pathologists was “substantially equal.” However, the court explained that this testimony, on its own, could not be assumed to be binding. As to the employers, they presented no evidence that additional tasks performed by the male pathologists were sufficient to remove them from the realm of proper comparators (Schulman v. Zoetis, Inc., No. 22-cv-01351 (MEF) (LDW) (D.N.J. May 6, 2025)).

A veterinary pathologist worked with two other veterinary pathologists, both men, who were paid more than she was. She believed this discrepancy was based on sex, leading her to file this lawsuit against the lab where she worked and the lab’s parent company, asserting claims for violations of the Equal Pay Act, Title VII, and state-law claims for violations of the Diane B. Allen Equal Pay Act and the New Jersey Law Against Discrimination. The employer moved for summary judgment against all claims, while the pathologist sought summary judgment as to all but her Title VII claim.

“Substantially equal.” To prevail on her Equal Pay Act claim, the pathologist had to show that her two male comparator pathologists performed “substantially equal” work to what she was doing in the lab. She contended that she had already satisfied this burden and the matter was no longer an issue. The court disagreed.

HR testimony. According to the pathologist, the substantially equal question was no longer in play because an HR employee who worked for an entity related to the lab’s parent company testified that the jobs performed by the pathologist and her comparators were “substantially equal.” However, the court noted that the pathologist did not press any argument as to why this testimony of an HR employee, who did not appear to have been put forward as a Rule 30(b)(6) witness, should bind the employers. Further, it did not appear that the HR employee worked either directly for the lab or the parent company.

In addition, stating that jobs were “substantially equal” is the expression of a legal opinion. While providing an opinion as to a legal question may or may not have been appropriate for an expert witness under FRCP 702, there was nothing in the record to indicate that the HR employee was put forward as an expert, observed the court.

It was possible, continued the court, that the HR employee’s testimony was appropriate as lay opinion testimony under FRCP 701, but the pathologist did not get into this question. As such, without the pathologist developing a meaningful argument on this point, the employers could not be forced to accept that she and her coworkers were engaged in substantially equal work based on the HR employee’s testimony, said the court.

Parent company testimony. Next, the pathologist argued that the substantially equal issue had been put to rest because the parent company had proffered testimony that she and her coworkers were working substantially equal jobs. The court was again unmoved.

Nothing was proffered by the pathologist to explain why the parent company’s statement would constrain the lab defendant, said the court. Moreover, there was no argument as to whether the referenced statement, made before an administrative body, should bind the employers here. The court noted that the doctrine of judicial estoppel may come into play, but the pathologist did not set forth any factual or legal arguments to show that a party had intended to play fast and loose with the court.

Court’s analysis. Without fleshing out either argument with regard to the HR employee’s testimony or the testimony of the parent company, the court found that it had too little to go on and was thus required to undertake a “substantially equal” analysis on its own, looking to skill, effort, and responsibility.

Skill. First addressing the matter of skill with regard to the pathologist and her comparators, the court found little evidence outlining what the comparators did on a day-to-day basis. It could be possible to proceed on the basis that because all three were veterinary pathologists, their work all required roughly the same set of skills, but to do so would veer close to allowing the pathologist to assume what she must prove, said the court. Without setting forth what the comparators actually did, there was an insufficient basis for inferring as a matter of law that their work required roughly the same skill as the pathologist’s.

Further, there was affirmative evidence that a substantially-comparable-skill inference could not be made here as a matter of law. All cases worked on by veterinary pathologists are not the same, observed the court. Some may be particularly hard or obscure.

Here, the comparators were assigned a relatively larger number of cases from the especially-difficult category. Given the complexity of these cases, special skills were brought to bear. This made it impossible to say, on the current record, that the pathologist and her comparators did work that required roughly the same skill level, said the court.

Experience. Suggesting another basis for concluding that her work required the same skill level as those of her comparators, the pathologist pointed out that she had six more years of experience than one comparator and 19 more years of experience than the other. The court was not persuaded.

On its own, the difference in experience cannot indicate that the pathologist’s work required roughly the same degree of skill as those of her comparators, explained the court, stating, “That an accountant has a math PhD does not shed light on what the core, “require[d]” skills of being an accountant are.”

Effort. Turning to the question of whether the jobs performed by the pathologist and her comparators required the same degree of effort, the court again found too little evidence to support a ruling as a matter of law.

Here, deposition testimony from a supervisor stated that the pathologist and her comparators performed a “similar amount of work.” However, the court found that it would “take a very hard squint to extract from that bare statement the conclusion that all three pathologists put in the same effort.”

Effort encompasses both physical and mental exertion, said the court. Two people may work 40 hours a week, but one person’s work may look substantially different from the other’s. To have a solid sense of how much effort is required between jobs, the court explained that it needed more than a sense that the hours worked are roughly equivalent.

Responsibility. As to the third element—responsibility—the court again found little evidence upon which it could make a determination. Although the pathologist and her comparators worked on the same team and reported to the same supervisor, this was not enough for the court, and accordingly it denied the pathologist’s motion for summary judgment on her Equal Pay Act claim.

Comparators. Next, the court considered the employer’s motion for summary judgment against the Equal Pay Act claim. The employer argued that the male pathologists were not proper comparators, again pointing to the fact they worked on a relatively larger number of complex cases. However, the court found that this argument did not work in this instance.

Giving every reasonable inference to the pathologist, with the evidence suggesting that the employers attempted to equitably assign work, then everything may have balanced out, said the court.

Common core. Regarding the employers’ citations to the fact that the comparators took on other kinds of tasks different from the pathologist, such has research, the court explained it was crucial to determine whether these tasks were outside the common core of the pathologist’s tasks and, if so, whether those tasks rendered the work substantially different. However, the employers made no argument as to how these different tasks fit into the bigger picture. Were they random tack-ons or did they encompass part of their core duties? Without more, this evidence was not enough to sustain a motion for summary judgment against the pathologist’s Equal Pay Act claim.

For similar reasons, both parties’ motions for summary judgment on the remaining claims were also denied.

The case is No. 22-cv-01351 (MEF) (LDW).

Judge: Farbiarz, M.

Attorneys: Hugh Baran (Katz Banks Kumin) for Frances Yvonne Schulman. Cody C. Hubbs (Jackson Lewis) for Zoetis, Inc.

Companies: Zoetis, Inc.

Cases: Discrimination PayDiscrimination SexDiscrimination Procedure StateLawClaims EvidenceDiscovery NewJerseyNews