Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PAY—E.D. Pa.: Employer willfully violated discovery order for pay documents of employee’s comparators, (Apr 9, 2025)

By Ronald Miller, J.D.

Of the six Poulis factors, four strongly supported imposing liability on the employer.

In a suit by a female professor against Drexel University for violations of the EPA, a federal district court in Pennsylvania imposed a sanction on the employer for disobeying a court discovery order for pay documents of male professors in the department, but allowed a trial to establish the employer’s willfulness and to determine damages. A jury found the employer’s violation of EPA willful. Thereafter, the employer moved for Judgment as a Matter of Law on willfulness issues related to EPA claim. However, the court denied the employer’s motion, finding that, based on the Poulis factors, the employee provided sufficient evidence from which the jury could find that the employer willfully violated EPA (Foley v. Drexel University, No. 22-1777 (E.D. Pa. Apr. 4, 2025)).

Equal pay claim. The employee filed suit against the university in 2022 alleging workplace discrimination in violation of state and federal law. Only her Equal Pay Act claim survived pre-trial motions, and a jury trial was scheduled for September 23, 2024.

In the weeks before trial, the employee requested that the employer produce “verifiable pay documents” containing the salaries of her fellow professors in her department. Because damages under the Equal Pay Act are calculated by comparing the pay of the underpaid employee to the pay of better-compensated coworkers of the opposite sex, the employee argued that it was crucial that she be provided with accurate and verifiable documents demonstrating what her male peers were paid.

Discovery order. The court ordered that before trial that the employer provide plaintiff’s counsel with access to the employer’s payroll containing historical salary information of all professors in the department.

On the morning of the September 23 trial date, plaintiff’s counsel sent an email to the court concerning events that had transpired over the weekend. In essence, the employer steadfastly declined plaintiff’s counsel access to review the pay data.

In response, the court granted the employee’s motion for a sanction in part. Specifically, it imposed liability on the university for violating the Equal Pay Act, with the questions of willfulness and damages to be determined at trial.

Jury verdict. A three-day jury trial on the questions of willfulness and damages was conducted. At the close of the employee’s case in chief, the university moved for Judgment as a Matter of Law on the question of whether its violation of the Equal Pay Act was willful. The court denied the university’s motion. Thereafter, the jury returned a verdict finding that the university’s violation was willful and determining that four of the employee’s fellow professors should be used as comparators in determining her statutory damages under the Equal Pay Act.

After trial, the parties jointly stipulated that the employee’s statutory damages under the Equal Pay Act amounted to $354,993.42. The university requested pursuant to 29 U.S.C. § 260 that the court exercise its discretionary power to reduce the amount of damages based on the fact that the employer’s action was in good faith. The court denied the request and entered judgment against the university in the full amount.

Request for new trial. The employer argued that the court committed two errors before and during the trial. First, the university asked the court to vacate the sanction of liability and grant a new trial “on all issues” because “the Court’s imposition of liability against Drexel on the Equal Pay Act is unsupported by evidence and erroneous.” Second, the university argued that it was entitled to a new trial because the court admitted irrelevant evidence offered by the employee and excluded relevant evidence offered by it.

Liability sanction. As an initial matter, the university cited no authority for the proposition that a district court must hold an evidentiary hearing before sanctioning a party. It is still permissible for a court to go as far as to “dismiss a case sua sponte” when it has “acquired knowledge of the facts it needs to make an informed decision,” meaning that an evidentiary hearing is not required in each and every case.

Here, the university argued that the court erred by imposing liability as a sanction without first holding an evidentiary hearing or weighing the factors set forth in Poulis v. State Farm Fire and Caus. Co., 747 F.2d 863 (3d Cir 1984).

In this case, the court nonetheless collected “the facts it need[ed] to make an informed decision” at the September 23, 2024, in court proceeding.

Poulis balancing. With regard to the first Poulis factor, the employer argued the employee failed to adduce evidence that it knew of the court’s instructions regarding access to the payroll data. As an initial matter, the court rejected the employer’s contention that a plaintiff bears the burden of producing evidence relevant to the Poulis analysis because it offered no authorities to support it as required by Local Rule of Civil Procedure 7.1(c). The argument also failed because the evidence demonstrated that university officials were indeed aware that the employer was to provide the employee and her counsel with access to the payroll database. Accordingly, the first Poulis factor supported imposing liability on Drexel.

Prejudice. As to the second Poulis factor, “the prejudice to the adversary caused by” the sanctioned party’s behavior, the court found that the employee’s “ability to prepare effectively a full and complete trial strategy” was burdened by the university’s failure to grant access to a payroll database. The third Poulis factor considered whether the offending party has “a history of dilatoriness.” Ultimately, this factor does not weigh in favor of a sanction of liability, because the employer did not have a track record of similarly egregious behavior earlier in this case.

Bad faith. The fourth Poulis factor considered whether the conduct at issue is “the type of willful or contumacious behavior that can be characterized as flagrant bad faith. Here, the court was not impressed by the employer’s voluntary release of redacted copies of the comparators’ W-2 forms. Given the circumstances here, the redacted W-2s were not an appropriate substitute for access to a database from which they were sourced since the documents’ provenance and accuracy were in question.

Alternative sanctions. The fifth Poulis factor considered the effectiveness of lesser, alternative sanctions. The imposition of liability was not the only sanction available here. The employer argued that, instead of imposing liability on it, the court should have given the employee another opportunity to directly access the W-2s” and “awarded reasonable attorneys’ fees and costs to [her] for any perceived delay.” Because the university had willfully flouted the court’s order, it determined that lesser sanctions would not suffice.

Meritorious defense. The final Poulis factor considers “the meritoriousness of the claim or defense.” Here, the university raised a statutory affirmative defense to the employee’s Equal Pay Act claim: that any pay disparities between she and her male colleagues were due to a seniority system, a merit system, or a differential based on any other factor other than sex. However, because the employee established a prima facie case that the employer had violated the Equal Pay Act, the final Poulis factor was neutral. Thus, of the six Poulis factors, four strongly supported imposing liability on the employer. The employer’s motion for Judgment as a Matter of Law was denied.

Due process. Next, the employer argued that the imposition of liability violated its right to procedural due process. The essentials of procedural due process are notice and an opportunity to be heard. In the context of Rule 37 sanctions, due process requires a court to “provide the party to be sanctioned with notice of and some opportunity to respond to the charges.”

Here, the employer argued that neither it nor its counsel received any notice that the court would be entertaining a sanction. However, the court pointed out that the employer and its counsel knew after the final pre-trial conference that its actions leading up to that day had fallen short of what the court had ordered, and that it was expected to comply with all court orders moving forward. Although the court did not advise the employer of the precise nature of any sanctions it might impose, that did not mean that the employer was in the dark about the consequences of disobeying two court orders.

In any event, the university received notice—along with an opportunity to be heard—at the hearing on September 23, 2024. What occurred at this hearing, coupled with the notice given to the university at the final pre-trial conference, were sufficient to satisfy procedural due process.

Evidentiary rulings. In determining whether to grant a new trial on the basis of supposedly erroneous evidentiary rulings, a court employs the same two-step inquiry governing other Rule 59(a) motions based on errors of law: it “must first determine whether an error was made in the course of trial, and then it must determine ‘whether that error was so prejudicial that refusal to grant a new trial would be inconsistent with substantial justice.’”

Here, the employer had not shown that these evidentiary rulings were legally erroneous, or that declining to grant a new trial “‘would be inconsistent with substantial justice.’” Accordingly, the employer’s request for a new trial on evidence grounds was denied.

The case is No. 22-1777.

Judge: Beetlestone, W.

Attorneys: Brian J. Foley (Brian J. Foley Law) for Marilyn Gaye Piety Foley. Hillary B. Weinstein (Tucker Law Group) for Drexel University.

Companies: Drexel University

Cases: Discrimination PayDiscrimination SexDiscrimination Procedure EvidenceDiscovery CoverageLiability RemediesDamages PennsylvaniaNews