_________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _________________________________________________________ No. 11-1497 _________________________________________________________ PAULETTE PRICE, WENDY O'NEIL, MARY DEE MILLER, and HELEN GOEBEL, Plaintiffs-Appellants, v. NORTHERN STATES POWER CO., Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Minnesota _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING PLAINTIFFS ON ISSUES ADDRESSED AND IN FAVOR OF NEITHER AFFIRMANCE NOR REVERSAL _________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. The district court erred by holding that the plaintiffs' evidence would not permit a jury to find a prima facie violation of the Equal Pay Act . . 9 B. The district court erred by focusing on whether the plaintiffs adduced "evidence of discrimination" in determining whether they raised a genuine issue of fact regarding NSP's affirmative defenses. . . . . . . . 10 C. The district court erred to the extent that it only considered evidence within the Equal Pay Act's two-year statute of limitations period. . . . 12 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . 11, 12 Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th Cir. 2007). . . . . . . . . 14 Broadus v. O.K. Indus., Inc., 226 F.3d 937 (8th Cir. 2000). . . . . . . . . . . . 9 Brown v. Fred's, Inc., 494 F.3d 736 (8th Cir. 2007). . . . . . . . . . . . . . . 12 Corning Glass Works v. Brennan, 417 U.S. 188 (1974). . . . . . . . . . . . . . 8, 13 Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021 (8th Cir. 2002). . . . . . . . . 9 Kasten v. Saint-Gobain Performance Plastics Co., __ U.S. __, 131 S. Ct. 1325 (2011). . . . . . . . . . . . . . . . . . . . . 1 Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). . . . . . . . .13 McKee v. Bi-State Development Agency, 801 F.2d 1014 (8th Cir. 1986). . . . . . . . 8 Mickelson v. New York Life Ins. Co., 460 F.3d 1304 (2d Cir. 2006). . . . . . . . .11 Ottman v. City of Independence, Mo., 341 F.3d 751 (8th Cir. 2003). . . . . . . . . 9 Price v. Northern States Power Co., 2011 WL 338451 (D. Minn., Jan. 31, 2011). . . . . . . . . . . . . . . . . . . . . . . passim Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). . . . . . . . . . . . . . . . . . 8 Tenkku v. Normandy Bank, 348 F.3d 737 (8th Cir. 2003). . . . . . . . . . . . . . . 11 Statutes 29 U.S.C. § 206(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 9 Other Authorities EEOC Compliance Manual Section 10: Compensation Discrimination. . . . . . . . . 8, 12 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Regulations 29 C.F.R. § 1620.26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________ No. 11-1497 ______________________ PAULETTE PRICE, WENDY O'NEIL, MARY DEE MILLER, and HELEN GOEBEL, Plaintiffs-Appellants, v. NORTHERN STATES POWER CO., Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Minnesota _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING PLAINTIFFS ON ISSUES ADDRESSED AND IN FAVOR OF NEITHER AFFIRMANCE NOR REVERSAL _________________________________________________________ STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission has a strong interest in this case as the federal administrative agency responsible for interpreting and enforcing the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d). As such, its views on the EPA are entitled "a degree of weight." Kasten v. Saint-Gobain Performance Plastics Co., __ U.S. __, 131 S. Ct. 1325, 1335 (2011) (giving "a degree of weight" to EEOC's interpretation of the EPA). This appeal presents important issues regarding the standards plaintiffs must meet in order to raise a genuine question of fact on the EPA's prima facie case and the employer's affirmative defenses. Accordingly, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). ISSUES PRESENTED<1> 1. Whether the district court erred in concluding that Field Representatives Paulette Price, Wendy O'Neil, and Mary Dee Miller failed to establish a prima facie case under the EPA despite acknowledging that each earned less current pay than one or more male Field Representatives working in the same location.<2> 2. Whether, in concluding that the plaintiffs did not raise a genuine issue of fact regarding Northern States Power Company's (NSP's) affirmative defenses, the district court erred by focusing on whether the plaintiffs adduced "evidence of discrimination" rather than on whether the plaintiffs adduced evidence from which a reasonable jury could find that NSP did not prove the pay disparities were fully explained by its asserted affirmative defenses. 3. Whether the district court erred by considering evidence only within the EPA's two-year statute of limitations period. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court granting summary judgment and dismissing all of the plaintiffs' claims. The plaintiffs, all female Field Representatives for NSP, initiated this action by filing a complaint on July 22, 2009, alleging, inter alia, that NSP violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d), by paying them less than male Field Representatives. (Doc. No. 6, Amended Complaint ¶ 26). The plaintiffs further alleged that the pay differentials were not based upon a seniority system, merit system, system that measures earnings by quantity or quality of production, or any other factor other than sex. (Id. at¶¶ 27). A final judgment was entered on January 31, 2011, dismissing the plaintiffs' claims based upon reasoning contained in an accompanying Memorandum Opinion. (Doc. Nos. 59, 60). The plaintiffs filed a notice of appeal on February 28, 2011. (Doc. No. 61). B. Statement of Facts The following facts are taken from the district court's opinion. Price v. Northern States Power Co., 2011 WL 338451 (D. Minn., Jan. 31, 2011). Paulette Price, Wendy O'Neil, Mary Dee Miller, and Helen Goebel work as Field Representatives for NSP and have done so since the late 1990s. In that capacity they perform bill collections, disconnections, reconnections, check for illegal connections, and post notices, among other duties. Id. at *1. Price, O'Neil, and Miller work with fifteen other Field Representatives, all men, in NSP's Chestnut Service Center covering the Twin Cities area in Minnesota. Helen Goebel works in the company's St. Cloud Service Center about seventy-five miles away with two other Field Representatives, both men. Id. "Wayne Stifter managed both locations from approximately 1998 through 2006 and made centralized decisions relating to supervision and compensation that impacted both locations." Id. at *3. NSP hires all Field Representatives from within and "red-circles" their pay so that no decrease in pay results. Price, 2011 WL 338451, at *1. During the period in question, Field Representatives' pay raises were based on a merit/performance-based system called Individual Performance and Development ("IPAD"), which was administered by supervisors and approved by managers. Id. at *2. Supervisors and managers calculated pay raises as a percentage of salary, with each IPAD rating level corresponding to a predetermined range of percentage increases. Id. Within the EPA's two-year statute of limitations period - i.e., within the two years prior to their complaint filed on July 22, 2009 - Price, O'Neil, and Miller received IPAD ratings and raise percentage increases that were higher than most of the male Field Representatives. Price, 2011 WL 338451, at *5. But, according to the district court's summary of the plaintiff's evidence, pay differences in actual dollar terms still existed between the plaintiffs and some of their male coworkers: * "Four male Field Representatives initially making more than Price are still making more than Price, and the gap between them has increased, two Field Representatives initially making the same as Price are now making more than her, and five male Field Representatives who initially made less than Price now make more than Price." * "Three male Field Representatives initially making more than O'Neil are still making more than O'Neil, and the gap between them has increased, and three male Field Representatives who initially made less than O'Neil now make more than O'Neil. One male Field Representative ... initially made $0.08 per hour more than O'Neil, but now makes $0.19 per hour less." * "Four male Field Representatives initially making more than Miller are still making more than Miller, and the gap between them has increased, two Field Representatives initially making the same as Miller are now making more than her, and three male Field Representatives who initially made less than Miller now make more than Miller." Id. The plaintiffs argued, according to the district court, "that there was a genuine factual dispute about the prima facie case because the gap between Plaintiffs' salaries and certain males who began with larger base salaries increased over time" and that "'the actual difference is more than the differential that can be explained simply by differences in starting pay alone.'" Id. The plaintiffs further argued that the unexplained pay differences are rooted in decisions made by their former manager, Wayne Stifter, who managed both the Chestnut and St. Cloud locations until mid-2006. Id. at *1, *3. C. District Court's Decision The district court held that the plaintiffs could not establish a prima facie case of sex-based pay discrimination under the EPA. Price, 2011 WL 338451, at *6, 7. The court provided little analysis except with respect to plaintiff Goebel, who the court held could not compare her pay to that of male Field Representatives in the Chestnut location because she worked in the St. Cloud location. Id. at *3-4, 6. With respect to plaintiffs Price, O'Neil, and Miller, the district court acknowledged that the "Plaintiffs point[ed] generally to the dollar differences between their salaries . . . compared to their male counterparts," and the fact that those differences had increased over time. Price, 2011 WL 338451, at *5. But the court held this insufficient to raise a genuine question of fact on the plaintiffs' prima facie case. Id. at *6. The court went on to hold that, even if a prima facie case was established, there was no genuine dispute that NSP met its burden to establish an affirmative defense of a merit-based pay system and another factor other than sex. Id. The court stated: "[The plaintiffs] cannot create a genuine issue of material fact by simply tabulating numbers without reference to starting salaries and IPAD ratings . . . . [They] have failed to make any attempt to compare themselves to male employees receiving the same IPAD ratings. A mere widening of a pay gap, without more, is not evidence of discrimination." Id. ARGUMENT THE DISTRICT COURT MISUNDERSTOOD THE STANDARDS PLAINTIFFS MUST MEET IN ORDER TO RAISE A GENUINE QUESTION OF FACT UNDER THE EQUAL PAY ACT ON THE PRIMA FACIE CASE AND THE EMPLOYER'S AFFIRMATIVE DEFENSES. The relative burdens the EPA places on plaintiffs and defendants flow from the language and structure of the statute itself. The EPA provides, in relevant part: No employer having employees subject to any provisions of this section shall discriminate within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees 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, except where such payment is made pursuant 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 . . . . 29 U.S.C. § 206(d)(1). Thus, a plaintiff in a sex-based unequal pay case bears only the prima facie burden of demonstrating that her pay is less than that of a man and that she performs substantially equal work under similar working conditions in the same establishment. McKee v. Bi-State Development Agency, 801 F.2d 1014, 1019 & n.5 (8th Cir. 1986). Once a prima facie case is established, the employer must assert and prove a statutory affirmative defense to avoid liability. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Drum v. Leeson Elec. Corp., 565 F.3d 1071, 1072 (8th Cir. 2009) ("Under the EPA, a defendant cannot escape liability merely by articulating a legitimate non-discriminatory reason for the employment action. Rather, the defendant must prove that the pay differential was based on a factor other than sex.") (internal quotation marks and citation omitted). See also Price Waterhouse v. Hopkins, 490 U.S. 228, 248 (1989) (stating under the EPA "it is the employer, not the employee, who must prove that the actual disparity is not sex linked"), superseded on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, § 107(a), 105 Stat. 1074. The employer's affirmative defense evidence must explain the pay disparity in full; if any part of the pay disparity is unexplained, the employer has not met its burden. See EEOC Compliance Manual Section 10: Compensation Discrimination, § 10-IV.F. ("The burden is a heavy one, because the employer must show that sex played no part in the compensation differential.").<3> In light of the above standards and the summary judgment posture of this case, the Commission believes the district court's opinion contains several errors. A. The district court erred by holding that the plaintiffs' evidence would not permit a jury to find a prima facie violation of the Equal Pay Act. To establish a prima facie case the plaintiffs have only to demonstrate that the employer paid male and female employees different wage rates for substantially equal work in the same establishment. E.g., Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002); Broadus v. O.K. Indus., Inc., 226 F.3d 937, 941 (8th Cir. 2000). Nothing more is required. They need not disprove NSP's explanation(s) for their pay disparities or raise an inference of intent. E.g., Ottman v. City of Independence, Mo., 341 F.3d 751, 758 (8th Cir. 2003) (observing that the EPA "does not require proof of discriminatory intent"). Again, the district court acknowledged that the "Plaintiffs point[ed] generally to the dollar differences between their salaries . . . compared to their male counterparts," and the fact that those differences had increased over time. Price, 2011 WL 338451, at *5. Consistent with the plain language of the EPA, such evidence is sufficient to establish a prima facie case under the EPA. See 29 U.S.C. § 206(d)(1) (forbidding employer from paying employees "at a rate less than the rate at which [it] pays wages to employees of the opposite sex"). The court seemed influenced by the fact that the plaintiffs admitted that at least part of their pay disparities was a function of NSP's red-circling policy. See Price, 2011 WL 33851, at *5. But a red-circling policy is an affirmative defense, and thus is irrelevant to whether the plaintiffs established a prima facie case. 29 C.F.R. § 1620.26 (describing various forms of red-circling as potential factors other than sex). Thus, the court erred in relying on evidence asserted by NSP to prove its affirmative defense to conclude that the plaintiffs failed to adduce sufficient evidence to raise a genuine question of fact on their prima facie case. B. The district court erred by focusing on whether the plaintiffs adduced "evidence of discrimination" in determining whether they raised a genuine issue of fact regarding NSP's affirmative defenses. After assuming for the sake of argument that the plaintiffs could establish a prima facie case, the district court held that "there is no factual dispute that NSP has met its burden with respect to its affirmative defenses concerning merit-based pay and another rationale based on something other than sex." Price, 2011 WL 33851, at *6. The court stated that "[the plaintiffs] cannot create a genuine issue of material fact by simply tabulating numbers without reference to starting salaries and IPAD ratings . . . . [They] have failed to make any attempt to compare themselves to male employees receiving the same IPAD ratings. A mere widening of a pay gap, without more, is not evidence of discrimination." Id. The court went on to state that "the record before the Court shows the kind of pattern where the protected-class members sometimes do better and sometimes do worse than their comparators, which by itself is not evidence of discrimination," and cited an age discrimination case and a race discrimination case as "analogous" even though in such cases, unlike those under the EPA, the plaintiff bears the burden of proof at all times. Id. In arriving at its conclusion, the district court appeared to misunderstand the plaintiffs' burden on summary judgment as having to counter NSP's affirmative defenses with evidence of discrimination. NSP is the movant here, and NSP bears the burden of proof on its affirmative defenses. Thus, summary judgment is improper unless NSP's evidence "is strong enough to establish one of the statutory affirmative defenses as a matter of law." Tenkku v. Normandy Bank, 348 F.3d 737, 741 n.2 (8th Cir. 2003). See also Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1311 (2d Cir. 2006) (stating that "because the employer's burden in an EPA claim is one of ultimate persuasion, 'in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary,'" meaning that the employer must "'submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity") (emphasis in original; internal citation omitted). This means that, in light of the summary judgment posture of this case, the plaintiffs here needed only to adduce evidence from which a jury could conclude NSP's evidence supporting its affirmative defenses does not explain the pay disparity in full. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding nonmovant may defeat summary judgment with evidence which, if believed, would permit a factfinder to find in the nonmovant's favor).<4> The district court thus erred by focusing on whether the plaintiffs adduced "evidence of discrimination" in response to NSP's asserted affirmative defenses. No such evidence is required. C. The district court erred to the extent that it only considered evidence within the Equal Pay Act's two-year statute of limitations period. According to the district court, the plaintiffs asserted that Wayne Stifter, their previous manager, made pay-related decisions and false statements about IPAD ratings in the early-to-mid 2000s which contributed to their current pay disparities. See Price, 2011 WL 33851, at *1, *3. The court appeared to have ignored the plaintiffs' evidence with respect to Stifter because it fell outside the EPA's two-year statute of limitations period. See id. at *3 (stating the "earliest date for liability on Plaintiffs' EPA claims would be July 22, 2007" and that "the Court notes the importance of this date for the purposes of analyzing Plaintiffs' claims"), and id. at *5 (stating that "[d]uring the relevant time period, Price, O'Neil, and Miller received IPAD ratings and raise percentage increases that were higher or better than most of the male Field Representatives," and focusing only on 2008 and 2009) (emphasis added). This was error because a plaintiff's evidence that her current pay is discriminatory need not be confined to the EPA's two-year statute of limitations period. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 625 & 640 (2007) (rejecting argument under Title VII that "it is sufficient that discriminatory acts that occurred prior to the charging period had continuing effects during that period," but stating that if an EPA claim were still live in the case the plaintiff "would not face the Title VII obstacles that she now confronts"). The limitations period serves only to limit the time during which plaintiffs may recover for unequal pay; it does not place a temporal limit on the evidence which may be considered in determining what caused the pay disparity. See Corning Glass Works, 417 U.S. at 192-94 & 205-10 (considering sex-based origins of the unequal pay received by women prior to the EPA's effective date in 1964, and holding that perpetuating those disparities many years later violated the EPA). Thus, evidence adduced by the plaintiffs bearing on whether NSP established its affirmative defenses is not irrelevant simply because it pertains to events occurring beyond the EPA's two-year statute of limitations period. For example, the plaintiffs' IPAD ratings and corresponding pay increases under Stifter - vis-à-vis their male counterparts - are relevant as compared to the IPAD ratings and corresponding pay increases they all received under their new supervisor during the limitations period. See Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 794 (7th Cir. 2007) (reversing summary judgment on EPA claim in part because plaintiff's evidence comparing her low performance review in March 2003 with her high performance review in January 2001 under a previous supervisor raised a genuine question of fact). Neither this nor any other evidence relevant to a material fact should be ignored. CONCLUSION For the foregoing reasons, this Court should rule in accordance with the views expressed in this brief. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _/s/ Corbett L. Anderson_______ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) because it contains 3,443 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and thus is less than one half the acceptable length of a principal brief under Fed. R. App. P. 32(a)(7)(B). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. _/s/ Corbett L. Anderson________ Corbett L. Anderson Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M. Street, N.E., 5th Floor Washington, D.C. 20507 CERTIFICATE OF SERVICE I hereby certify that on May 3, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. _/s/ Corbett L. Anderson_________ Corbett L. Anderson Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M. Street, N.E., 5th Floor Washington, D.C. 20507 ********************************************************************************** <> <1> The Commission takes no position on any other issues that may be presented in this appeal. <2> With respect to plaintiff Helen Goebel, who worked in a different location, the Commission expresses no view except to note that the third issue presented may be relevant to whether the district court erred in holding that Wayne Stifter's exercise of centralized pay decisionmaking during the period the plaintiffs allege their pay disparities developed did not mean the two locations were one establishment. See Price v. Northern States Power Co., 2011 WL 338451, at *3-4 (D. Minn., Jan. 31, 2011). <3> Available at http://www.eeoc.gov/policy/docs/compensation.html <4> Certainly, if a plaintiff's "evidence is merely colorable, or is not significantly probative, summary judgment may be granted." See Anderson, 477 U.S. at 249- 50. And, to be sure, to the extent the district court was correct that there is a lack of a pattern of unequal pay, that would be relevant to the employer's affirmative defenses, but it would not be dispositive. See Corning Glass Works, 417 U.S at 208 (stating that allowing employer to evade the EPA simply by paying some women more than men "would frustrate, not serve, Congress' ends"); Brown v. Fred's, Inc., 494 F.3d 736, 742 (8th Cir. 2007) (affirming verdict for plaintiff, and stating that the fact a district manager testified that a female made more than many males and that the plaintiff made the same as one male and more than two others was "some evidence that pay differences ... were based on a factor other than sex" but was not dispositive); EEOC Compliance Manual Section 10: Compensation Discrimination, § 10-IV.E.1. ("[T]he employer's treatment of other women is relevant to the complainant's case - if other women are paid the same as or more than males, this may indicate that a factor other than sex explains the complainant's compensation.") (emphasis added), available at http://www.eeoc.gov/policy/docs/compensation.html