Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PAY—M.D. Tenn.: RIF’d account manager, paid less than male colleague, advances discrimination, retaliation claims, (Jan 24, 2025)

By Jason Albright, J.D.

She was RIF’d after complaining about her lower wages compared to a male colleague.

A national account manager for WillScot Mobile Mini Holdings Corp., RIF’d after she complained about a pay disparity with a male colleague she said earned about $16,000 more, may proceed to trial with her Equal Pay Act, Title VII sex discrimination, and retaliation claims, a federal district court found. The factual basis of how the employer set her salary and that of two better-paid male coworkers, among others, was “hotly disputed.” She also cited evidence showing that her termination was not a true RIF given her quick replacement, and she adequately alleged that her supervisors’ “gendered” comments, her disparate treatment in the workplace, and the employer’s poor handling of her complaints further established pretext for the RIF (Thornhill v. WillScot Mobile Mini Holdings Corp., No. 3:23-cv-00673 (M.D. Tenn. Jan. 23, 2025)).

National Account Manager. The plaintiff, who started working for Mobile Mini in 2017, was promoted to National Account Manager (NAM) in October 2020, with a salary of $84,999.90.

Pay discussion with colleague. In 2022, she attended a work conference with her male colleague, another Mobile Mini NAM, and on the way to the conference, the two discussed their compensation. During that conversation, she learned that the employer paid the colleague a base salary of approximately $106,000. She told him that her base salary was $89,000.

Email to Director of People. HR directed her to the Director of People, and she emailed him to discuss the pay differential, noting that she learned that “there is a base salary difference of $16,000 between a fellow male NAM and myself.” In the email she also observed that she had been at the company longer, was promoted to the team sooner, had the same job responsibilities and level of education, and was “the first woman on the Mobile Mini National Account’s team.”

Explanation and reply. After the two discussed the matter by phone, the director emailed her and explained, among other things, that “[c]ompensation and determining factors are complex,” that the company was in the process of “harmonizing” its compensation across teams following a merger, and that wages vary across the country based on cost of living.

The director further noted that she is “one of many women on the combined Key Accounts team now reporting up through [a new VP]” who is “working closely with the compensation team” and a commercial HR business partner to evaluate and better harmonize “several legacy ranges and plans.”

Another email. In the NAM’s reply email the same day, she reiterated her concerns. She noted that none of the NAMs lives in California or New York, the states with the highest salary differentials, that the NAM with the highest salary lives in the same state as she does, and that she lives in the state’s most expensive city. Her email again referenced the male colleague’s higher base salary than her own, and she also referenced the salary of another male Mobile Mini NAM colleague: $125,000.

Discussion with VP. The director suggested she reach out to the VP, her boss, and the NAM eventually did so, later also discussing her pay concerns with the national account director.

RIF. A month later, on November 17, 2022, the national account director and a senior HR official informed her that WillScot was terminating her employment as part of a reduction in force (RIF). At the same time the company terminated her employment, it RIF’d another male Mobile Mini NAM, and both were selected by the VP for termination.

Shortly after the RIFs, however, the company hired a new employee and promoted another one to replace both NAMs.

Lawsuit. Following her termination, the NAM filed suit against WillScot, alleging violations of the EPA, Title VII, and the Tennessee Human Rights Act (THRA), and WillScot moved for summary judgment.

EPA claim. The court first found that the former NAM made out a prima facie case of gender-based wage discrimination under the EPA. She pointed to evidence that most of the male Mobile Mini NAMs working under the national account director, her ultimate supervisor, made more than she and her only female colleague. Second, she provided evidence demonstrating that all Mobile Mini NAMs—regardless of gender and base salary—had the same “actual requirements and performance” obligations.

The employer asserted, as its affirmative defense, that the male Mobile Mini NAMs’ “superior experience” was a factor other than sex explaining the wage disparity, but she disputed this, arguing that WillScot “has no knowledge of the factors that actually went into setting the salary” of any Mobile Mini NAM prior to its merger with Mobile Mini, male or female.

Here, the court found that WillScot “failed to meet the heavy burdens of persuasion and production to establish that the ‘factor of sex’ had ‘no part of the basis’ for the wage differential.” Indeed, the factual basis of how WillScot set the three NAMs’ salaries, among others, was “hotly disputed.” She pointed to evidence that experience levels may not account for the wage disparity, and a senior HR official conceded that she did not ever speak to hiring managers at Mobile Mini to determine why they set their salaries at differing base levels. WillScot’s motion for summary judgment against her EPA wage discrimination claim thus failed.

Title VII and THRA wage discrimination. Turning to her other wage discrimination claims, the court observed that her EPA, Title VII, and THRA wage discrimination claims relied on the same conduct—her complaints about her lower wages and WillScot’s subsequent termination of her employment—and same related evidence. Because she raised a genuine dispute of material fact as to WillScot’s affirmative defense to her EPA gender-based wage discrimination claim, WillScot was thus also not entitled to summary judgment against her Title VII and THRA gender-based wage discrimination claims.

Retaliation. Her EPA, Title VII, and THRA retaliation claims also survived the employer’s motion for summary judgment. A reasonable juror, the court found, could conclude that she reasonably believed her longer tenure as a NAM warranted her having a higher salary than the first male colleague, irrespective of past experience, and her July 2022 complaint to the Director of People communicated that belief. The one-month period between her complaint to the national account director and her termination was also more than sufficient evidence to establish an inference that the former caused the latter.

Finally, though the employer alleged that she was legitimately terminated pursuant to the RIF, she cited evidence showing that her termination was not a true RIF given her quick replacement. She also adequately alleged that her supervisors’ “gendered” comments, her disparate treatment in the workplace, and the employer’s poor handling of her complaints further established pretext for the RIF.

Gender-based termination. Finally, the former NAM’s Title VII and THRA gender-based termination claims also survived. WillScott argued that she failed to present required statistical evidence to show that she was singled out in the RIF for impermissible reasons, but the court found that this requirement applies only in a “true work force reduction case,” which was by no means established. Indeed, “the validity of the RIF, and whether WillScot truly terminated [her] as part of a RIF, are disputed facts best resolved by the jury.”

The case is No. 3:23-cv-00673.

Judge: Crenshaw, W., Jr.

Attorneys: Caraline E. Rickard (Rickard Masker) for Jordan Thornhill. John Richard Adams (Jackson Lewis) for Willscot Mobile Mini Holdings Corp.

Companies: WillScot Mobile Mini Holdings Corp.

Cases: PayDiscrimination SexDiscrimination Discrimination Retaliation Discharge Layoffs TennesseeNews