UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DANA JOHNSON,

Plaintiff,

v. Case No. 19-cv-3534 (CRC)

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

Defendant.

MEMORANDUM OPINION

For a six-month period in 2018, Plaintiff Dana Johnson, then a financial analyst with the

Washington Metropolitan Area Transit Authority (“WMATA”), earned 10% less than a white,

male co-worker. Johnson believes she was paid less because she is an African American

woman. WMATA disagrees. It attributes the differential to the fact that Johnson’s colleague

had greater job responsibilities, and that his past union membership placed him on a higher

salary trajectory. Because WMATA has proffered undisputed evidence supporting both

explanations, it is entitled to summary judgment on Johnson’s disparate pay claims under the

Equal Pay Act and Title VII of the Civil Rights Act.

I. Background

The following facts appear to be uncontested unless otherwise indicated. Dana Johnson

began working for WMATA in October 2010. Def.’s Stmt. Material Facts (“SMF”) ¶ 18 (citing

Fletcher Decl. ¶ 12). Johnson started out as a Financial and Grants Analyst and in 2014 then

became a Financial Officer. Id. ¶ 18; Pl.’s SMF ¶ 2. Neither position is covered by a union

collective bargaining agreement. See Def.’s SMF ¶¶18–19 (citing Fletcher Decl. ¶¶12–13).

WMATA divides non-union positions into six salary plan classifications corresponding to various functional responsibilities, including, as relevant here, Engineering (“EG”) and Business

Operations (“BO”). Id. ¶ 12 (citing Fletcher Decl. ¶ 10). Johnson’s Financial Officer position,

which was later revised by her supervisors to Senior Financial Analyst, was classified at grade

level BO-13. Pl.’s SMF ¶ 2; Garback Decl. ¶ 6; Garback Decl. Ex. A (Senior Financial Analyst

position description).

Sometime in 2018, Johnson discovered that her salary was 10% lower than that of one of

her co-workers, Aris Papapetrou. Pl.’s Cross-Mot. at 2. Despite their different titles and

business areas—Papapetrou is a Project Coordinator with an Engineering salary classification—

Johnson alleges that they performed substantially similar work. Id.; Pl.’s SMF ¶¶ 4, 7. The

Court will return to the respective duties and responsibilities of the two positions below.

Papapetrou began his career at WMATA nearly two decades ago. Def.’s SMF ¶ 5 (citing

Fletcher Decl. ¶ 3). At the beginning of his tenure, he joined a union—the Office and

Professional Employees International Union, Local No. 2 (“Local 2”). Id. ¶¶ 5–6 (citing Fletcher

Decl. ¶¶ 3–4). Under the collective bargaining agreement (“CBA”) between Local 2 and

WMATA, union members receive mandatory step increases based on their tenure and

performance. Id. ¶ 8 (citing Fletcher Decl. Ex. A, at 29-32, App. A-E). Over his long career at

WMATA, Papapetrou earned numerous step increases, and with each one came a bump in

salary. Id. ¶¶ 9–10 (citing Fletcher Decl. ¶¶ 7-8).

On April 1, 2018, Papapetrou assumed his first non-union position at WMATA—with the

title Project Coordinator—thereby ending his Local 2 membership. Def.’s SMF ¶ 6 (citing

Fletcher Decl. ¶ 4). The position was classified as EG-13. Id. ¶ 13 (citing Fletcher Decl. ¶ 11).

WMATA set Papapetrou’s new salary by increasing his prior salary by 10%, resulting in annual

pay of $133,764. Id. ¶ 22 (citing Fletcher Dep. 35:4–36:16; Fletcher Dep. Ex. 4). WMATA

2 asserts that the 10% increase was dictated by a provision of its employee compensation policy

governing promotions. Id. More on that later.

Meanwhile, in March 2018, Johnson filed an official complaint requesting “a salary [and]

position realignment,” contending that her compensation was inconsistent with her job duties.

Fletcher Decl. ¶ 18 (citing id. Ex. C). Johnson’s supervisors reviewed her responsibilities, and

ultimately revised her title to Senior Financial Analyst and adjusted her position description.

Def.’s SMF ¶ 28 (citing Fletcher Decl. ¶ 19; Garback Decl. ¶ 6). WMATA’s Office of

Compensation and Benefits then determined “the appropriate salary grade level for the [revised]

job description.” Id. ¶ 29 (citing Fletcher Decl. ¶ 20). Despite her new title and position

description, the Office left her grade and salary unchanged. Id. ¶ 30 (citing Fletcher Decl. ¶ 21).

Soon thereafter, however, Johnson received a promotion to Program Manager in a different

department, along with her own 10% salary increase, effective October 1, 2018. Id. ¶ 38 (citing

Johnson Dep. 42:12–43:20).

Johnson filed this lawsuit in November 2019. She claims that the differential between

her and Papapetrou’s pay during the period in which she held the Financial Officer and Senior

Financial Analyst positions and he held the Project Coordinator position—which spanned the six

months between April 1, 2018 and October 1, 2018—resulted from unlawful gender

discrimination in violation of the Equal Pay Act (Claim I) and gender and race discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Claims II and III). The parties have

completed discovery and now cross-move for summary judgment.

II. Standard of Review

A court must grant summary judgment if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

3 Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the “absence

of a genuine issue of material fact.” Celotex Corp. v. Catrett,

(1986). At this

stage, courts should view the evidence “in the light most favorable to the nonmoving party” and

must “draw all reasonable inferences in favor of the nonmoving party.” Talavera v. Shah,

(D.C. Cir. 2011) (citation omitted); (Holcomb v. Powell,

(D.C.

Cir. 2006)). Non-movants cannot rely on “mere allegations” or conclusory statements to defeat

summary judgment. Guillen-Perez v. District of Columbia,

, 57 (D.D.C.

2019) (Cooper, J.) (citing Veitch v. England,

(D.C. Cir. 2006)).

On cross-motions for summary judgment, each party “must carry its own burden under

the applicable legal standard.” Mitchell v. Pompeo, No. 1:15-CV-1849 (KBJ),

, at *4 (D.D.C. Mar. 31, 2019) (quoting Ehrman v. United States,

(D.D.C. 2006)). A “cross-motion for summary judgment does not concede the factual assertions

of the opposing motion.”

(citing CEI Washington Bureau, Inc. v. Dep’t of Just.,

(D.C. Cir. 2006)).

III. Analysis

Johnson brings two claims for pay discrimination, one under the Equal Pay Act,

(d)(1), and the other under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a)(1). The Court takes each in turn.

A. Equal Pay Act Claim

1. Prima Facie Case

The Equal Pay Act outlaws pay discrimination on the basis of sex, remedying the

“ancient but outmoded belief that a man should be paid more than a woman for performing the

same duties.” Perez v. D.C. Dep’t of Emp. Servs.,

(D.D.C. 2018)

4 (cleaned up);

(d)(1). The Act prohibits an employer from paying an employee of

one sex a lower wage than it pays an employee of the opposite sex for “equal work on jobs the

performance of which requires equal skill, effort, and responsibility, and which are performed

under similar working conditions.”

(d)(1). To establish an Equal Pay Act

violation, a plaintiff first must allege (and later prove) a prima facie case.1 “Once a prima facie

case has been made out, the defendant may rebut the showing of [job] equality, or assert one of

the Act’s [four] affirmative defenses.” Goodrich v. Int’l Bhd. of Elec. Workers, AFL-CIO,

(D.C. Cir. 1987). These defenses allow wage disparities due to: “(i) a seniority

system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of

production; or (iv) a differential based on any other factor other than sex.”

(d)(1).2

1 There is a degree of confusion in the caselaw as to the precise elements of a prima facie case under the Equal Pay Act. In a recent case, Judge Moss of this court grappled with whether there are three elements—(1) unequal pay, (2) substantially equal work, and (3) substantially equal job requirements—or whether the third “equal job requirements” element defines, and therefore subsumes, the second “equal work” requirement. Savignac v. Day,

, 111–12 (D.D.C. 2021). On reconsideration of an earlier ruling, Judge Moss landed on the latter interpretation based on his reading of the Supreme Court’s decision in Corning Glass Works v. Brennan,

(1974) and the D.C. Circuit’s prior recitations of the elements. Savignac, 539 F. Supp. 3d at 111–15. The Court generally concurs with Judge Moss’s reasoning but need not delineate the elements of a prima facie case here because “equal job requirements” is undoubtedly one of them and, as will be discussed below, the dispute in this case centers on whether Johnson has established that element. 2 Some circuit courts have added a third step to the analysis, permitting plaintiffs, like in the Title VII context, to show that the reason supporting the employer’s affirmative defense was merely pretext for a sex-based pay disparity. See, e.g., Belfi v. Prendergast,

(2d Cir. 1999). At least one fellow court in this district has followed that approach. See Franks v. Edison Elec. Inst., No. 20-CV-3393 (APM),

, at *3 (D.D.C. Mar. 31, 2022). Because the D.C. Circuit appears not to have endorsed this three-step approach, the Court will not adopt it here. Rather, the Court will consider Johnson’s pretext arguments in evaluating whether WMATA has met its burden to establish an affirmative defense at step two.

5 Johnson has not established a prima facie Equal Pay Act violation because she has not

shown that she and Papapetrou held jobs requiring substantially “equal skill, effort, and

responsibility.” Goodrich,

. The “substantial equality” inquiry requires courts

to consider not just selected aspects of the relevant jobs, but the positions in their totality; at the

same time, courts focus on the “primary duties of each job, not those which are incidental or

insubstantial.”

(citation omitted).

Johnson and Papapetrou’s respective positions have different titles, are subject to

different pay scales based on their distinct functional responsibilities, and have different overall

requirements. During the relevant time period, Johnson was a Financial Officer and then a

Senior Financial Analyst, supporting WMATA’s fare-collection modernization program. Pl.’s

Ex. G (WMATA Position Statement to EEOC at 3). As these titles suggest, the overall focus of

Johnson’s job was financial: “monitor[ing] departmental operating and capital program financial

performance.” Garback Decl. Ex. A (Senior Financial Analyst position description).

Meanwhile, Papapetrou is a Project Coordinator, which has an Engineering salary classification.

The overarching responsibility of that position is more operational: “assisting . . . in the

planning, implementation and completion of highly complex[,] multi-discipline tasks related to

managing the construction, rehabilitation, upgrade, or enhancement of [WMATA’s] transit

system.” Garback Decl. Ex. B (Project Coordinator position description).

The jobs are also subject to different pay ranges. Employees in Johnson’s grade BO-13

position can earn between $80,359 and $120,539 annually. Fletcher Decl. Ex. B (Chart of

WMATA non-represented salary ranges). Those in Papapetrou’s EG-13 position demand

meaningfully higher salaries, from $94,824 to $142,236.

While the record is silent as to why

the EG-13 position carries higher pay, simple economics would suggest that EG-13 employees,

6 on average, generally have either greater or scarcer skills, or more sophisticated job

responsibilities, than BO-13 employees.

The two positions also entail at least some distinct day-to-day duties and responsibilities.

Most relevant here, Project Coordinators have the authority to “review[] funding availability and

approve[] funding of change orders, supplemental agreements, and work orders involving capital

or operating reimbursable funds.” Garback Decl. Ex. B. Such independent funding authority is

absent from the Senior Financial Analyst position description, and Johnson’s supervisor confirms

that she “did not have authority to independently approve [WMATA] funding.” Garback Decl.

¶ 9. Johnson does not contend otherwise. And that authority is far from trivial; trusted financial-

related responsibilities like the power to commit an organization’s funds is a major

distinguishing factor between any two jobs. See Robinson v. Davis Mem’l Goodwill Indus.,

Inc.,

(D.D.C. 1994) (finding that jobs were not “substantially equal”

where employer entrusted comparator with responsibility of pricing goods for auction, justifying

higher pay);

(EEOC regulation noting that an employer would be allowed to

pay a higher wage to a sales clerk who is authorized to accept personal checks for payment than

to a sales clerk who was not tasked with that additional responsibility, “which may materially

affect the business operations of the employer”).3

To be sure, a position description is not dispositive of what an employee’s actual job

requires. See, e.g., Savignac v. Day,

, 118–19 (D.D.C. 2021) (citing

Brennan v. Prince William Hosp. Corp.,

(4th Cir. 1974)). But the two jobs

3 WMATA also points to other seemingly important requirements of Papapetrou’s position that Johnson’s job lacked, including independent authority to set budgets. See Mot. at 9–10. The Court need not address these additional differences, however, because Papapetrou’s funding approval authority is sufficient on its own to distinguish the two jobs.

7 here are not just different on paper. The official who hired Papapetrou for the Project

Coordinator role attests that his official job description “accurately reflects the duties and

responsibilities required” of him—including approval of project funding. Levy Decl. ¶ 5. That

Papapetrou’s job requires an important responsibility that Johnson’s does not dooms her prima

facie case. Savignac, 539 F. Supp. 3d at 112 (“For purposes of stating a prima facie case [under

the EPA] . . . the question is . . . what the job requires”); see also Goodrich,

(holding that positions were not substantially equal because comparators’ additional duties were

significant to employer’s operation); Johnson v. District of Columbia,

(D.D.C. 2013) (finding that jobs were not substantially equal because comparator held

“additional and significantly different duties”).

Johnson’s efforts to avoid this result center on a declaration that Papapetrou submitted on

her behalf. In it, he lists a series of tasks that are “included” within his primary duties.

Papapetrou Decl. ¶ 4. The list largely overlaps with Johnson’s description of her own work.4

And based on his observations of Johnson and the results of her work, Papapetrou concludes that

“Johnson performed substantially [] similar duties as I did in 2018.” Papapetrou Decl. ¶ 8.

4 Johnson’s complaint catalogs her job responsibilities as follows:

[M]aintaining cost controls for all project related activities, participating in the development and management of program capital and operating budgets, utilizing the system to create projects, preparing queries, entering and retrieving information, producing reports, conducting analysis, entering purchase requisitions, tracking purchase orders, and validating internal personnel labor and non-personnel costs to include preparing payment application requests and system-receipts required to pay vendors/contractors.

Pl.’s Cross-Mot. at 5 (citing Compl. ¶ 21).

8 While Papapetrou’s support of a colleague may be admirable, his declaration does not

create a genuine dispute as to whether the two positions are substantially equal. As WMATA

notes, having some shared duties and responsibilities does not render the jobs substantially equal.

Def.’s Reply at 6; see also Goodrich, 815 F.2d at 1524–25. Moreover, Papapetrou’s list of

responsibilities is not exhaustive—it is preceded by the statement, “my primary responsibilities

included”—leaving room for additional tasks. Papapetrou Decl. ¶ 4 (emphasis added). The

absence of funding approval from his enumerated list of shared responsibilities only bolsters the

conclusion that Johnson’s position did not share that duty. Papapetrou may well have observed

Johnson performing similar tasks, but his declaration does not establish “substantial equality” in

the legal sense meant by the Equal Pay Act.

Johnson also claims that her supervisors’ review of her job responsibilities following her

formal complaint was cursory, and that they failed to interview Papapetrou or examine his job

duties. Pl.’s Cross-Mot. at 5–6. But because Johnson has not offered proof that she was

entrusted to approve funding, or rebutted WMATA’s evidence that Papapetrou’s position

required that responsibility, the scope of her position evaluation is beside the point.

Accordingly, Johnson has not made out a prima facie Equal Pay Act case and WMATA

is entitled to summary judgment on that claim.

2. WMATA’s Affirmative Defense

Even if Johnson had made out a prima facie case, WMATA would be entitled to

summary judgment because it has established the Equal Pay Act’s fourth affirmative defense:

that the relevant pay differential was “based on any other factor other than sex.”

(d)(1). Specifically, WMATA has shown that the pay gap resulted from “Papapetrou’s

9 prior work history, salary, experience, and WMATA’s policies governing promotions.” Def.’s

Reply at 2.

Until he assumed the Project Coordinator role in April 2018, Papapetrou was a Local 2

member and his “salary and raise history” were “governed by a collective bargaining agreement”

between WMATA and his union. Def.’s Mot. at 4 (citing Def.’s SMF ¶¶ 6–10). The CBA

entitled Papapetrou to pay increases over the years, such that by March 2018 his annual salary

was $123,422. Def.’s SMF ¶¶ 8–10, 15 (citing Fletcher Dep. Ex. 4; Fletcher Decl. ¶¶ 6–8). A

WMATA human resource official, Dyane Fletcher, testified that WMATA regarded

Papapetrou’s new position as a promotion and applied its compensation policy for promoted

employees when setting his salary. Fletcher Dep. 12:6–13:10, 35:21–36:10. That policy states

that promoted employees will “receive the greater of a 10% promotional adjustment” or an

“increase to the minimum of the new salary range.” Pl.’s SMF, Ex. L (WMATA Compensation

Management and Administration (“WMATA’s Compensation Policy”) § 5.02(b)(4)(iv)); see also

Fletcher Dep. Ex. 4 (spreadsheet entry noting the reason for the new salary as “10% Minimum

for Promotion based on Comp Policy”). Papapetrou’s salary was already above the minimum of

the EG-13 salary range, so WMATA determined that he was entitled to a 10% adjustment under

the policy, resulting in an annual salary of $135,764. See Fletcher Decl. Ex. B; Def.’s SMF ¶ 14

(citing Fletcher Dep. 77:21–79:4; Fletcher Dep. Ex. 4).

Johnson does not dispute that WMATA calculated Papapetrou’s new salary by applying a

10% increase over his prior salary under WMATA’s promotion policy. Instead, she argues that

the CBA does not address salary determinations when employees move from union to non-union

positions and, therefore, the CBA did not require Papapetrou’s 10% raise. See Opp’n at 7–8.

But that argument is a red herring. WMATA does not contend that the raise was dictated by the

10 CBA; it simply explains how operation of the CBA resulted in Papapetrou’s salary as of April

2018. And it offers undisputed evidence that WMATA increased Papapetrou’s then existing

salary by 10% under its promotion policy. Again, Johnson nowhere disputes that WMATA in

fact applied the promotion policy to arrive at Papapetrou’s Project Coordinator salary.

Johnson also maintains that the provision of WMATA’s compensation policy that

dictates a 10% salary increase for promotions, § 5.02(b)(4)(iv), does not apply in cases, like

Papapetrou’s, where union members move to non-union roles. Pl.’s Reply at 2 (citing WMATA

Compensation Policy, Ex. L). Johnson points to another provision dealing with that scenario,

§ 5.05, which states: “Salary adjustments for employees moving from represented to non-

represented positions as a result of competitive recruitment must be consistent with the

provisions of the applicable Collective Bargaining Agreements.” WMATA Compensation

Policy. But whether WMATA applied the correct provision of its compensation policy is

immaterial because Johnson has offered no evidence that WMATA did not apply the promotion

policy in good faith, or that it somehow used the policy as a pretext to pay Papapetrou more than

her or other women employees performing the same job. See Davis v. Yellen, No. 08-CV-447

(KBJ),

, at *30 (D.D.C. June 22, 2021) (“mere procedural irregularities are

‘not sufficient to establish that [the] defendant’s proffered explanation is pretextual absent some

actual evidence that [the] defendant acted on a motivation to discriminate against [the] plaintiff

based on’” his race.) (citation omitted); see also Fischbach v. D.C. Dep’t. of Corr.,

(D.C. Cir. 1996) (the pretext inquiry is not centered on the “correctness or desirability of

reasons offered [by defendant] . . . but [on] whether the employer honestly believes in the

reasons it offers”) (cleaned up).

11 The provision governing transfers (§ 5.05) does not appear at odds with the provision

governing promotions (§ 5.020) in any event. A 10% salary adjustment mandated by § 5.020

can still be “consistent” with the applicable CBA. Nothing in the language of § 5.020 indicates

that it does not apply to promotions of employees moving from union to non-union roles.

Finally, Johnson complains that WMATA did not develop its affirmative defense based

on Papapetrou’s historical salary trajectory until late in discovery and that the timing somehow

suggests that the explanation is pretextual. Pl.’s Cross-Mot at 7. Not so. While shifting

explanations for an employment action can suggest pretext in some cases, see Ajisefinni v.

KPMG LLP,

(D.D.C. 2014), Johnson offers no evidence to cast doubt on

the accuracy or veracity of WMATA’s account of how it arrived at Papapetrou’s salary.

Moreover, the Court permitted WMATA to re-open discovery to obtain information about how

Papapetrou’s prior union membership affected the calculation of his new salary.

Accordingly, WMATA has conclusively established that it set Papepetrou’s salary “based

on a factor other than sex.” It would therefore be entitled to summary judgment even if Johnson

had made out a prima facie Equal Pay Act case.

B. Title VII

Johnson’s Title VII claim also fails for similar reasons. Title VII makes it unlawful for

employers to “discriminate against any individual with respect to [her] compensation . . . because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). As

with the Equal Pay Act, to allege wage discrimination under Title VII, a plaintiff must show that

she performed work “substantially equal” to that of a comparator (along with proving other

prima facie elements). See Anderson v. Zubieta,

(D.C. Cir. 1999). Then,

under the McDonnell Douglas burden-shifting framework’s second prong, the employer must

12 articulate a legitimate, nondiscriminatory reason for the differential. See, e.g., Guillen-Perez,

415 F. Supp. 3d at 60. If the employer establishes its burden, then the plaintiff must provide

sufficient proof to allow a reasonable jury to infer that the “employer’s proffered reason is

merely pretext for discrimination.” Id. at 58.

Johnson fails to make out a prima facie case because, as discussed earlier, the record

establishes that her Financial Officer position was not substantially equal to Papapetrou’s Project

Coordinator position. Additionally, WMATA has supplied a legitimate, nondiscriminatory

reason for the pay disparity—namely, that it set Papapetrou’s Project Coordinator salary based

on its promotion policy—which Johnson has not rebutted with any evidence that WMATA’s

stated reason is pretext for intentional discrimination based on either sex or race.

WMATA is therefore entitled to summary judgment on Johnson’s Title VII claims as

well.

IV. Conclusion

For the foregoing reasons, the Court will grant WMATA’s motion for summary judgment

and deny Johnson’s cross-motion for summary judgment.

A separate Order shall accompany this memorandum opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: September 29, 2022

13