Case 1:19-cv-00945-RDM Document 65-1 Filed 12/04/19 Page 1 of 30

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NILAB RAHYAR TOLTON et al., on
behalf of themselves and all others similarly
situated,
Plaintiffs,
v.
JONES DAY, a General Partnership,

No. 1:19-cv-00945-RDM

JURY TRIAL DEMANDED

Defendant.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION
FOR CONDITIONAL CERTIFICATION OF AN EQUAL PAY ACT
COLLECTIVE ACTION AND AUTHORIZATION OF NOTICE

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TABLE OF CONTENTS
I.

INTRODUCTION ................................................................................................................... 1

II. FACTUAL BACKGROUND.................................................................................................. 3
A. Plaintiffs Bring the Proposed Collective Action on Behalf of All Female Associates at
Jones Day .................................................................................................................................... 3
B. Compensation at Jones Day Is Determined Through a Centralized Process by A
Centralized Management............................................................................................................. 3
C. Plaintiffs Allege That Under This Policy, They Were Paid Less Than Men for
Substantially Equal Work............................................................................................................ 6
1.

Jones Day Fails to Pay “Market Pay” to Top-Performing Female Associates ................ 8

2. Jones Day’s Entrenched Discriminatory Environment Plausibly Extends to Plaintiffs’
Compensation .......................................................................................................................... 8
3. The Named Plaintiffs Have Identified Male Comparators Who, on Information and
Belief, Were Paid More ......................................................................................................... 11
4.

Plaintiffs Performed Substantially Similar Work as Other Jones Day Associates ........ 12

III. LEGAL STANDARD ........................................................................................................... 14
IV. ARGUMENT......................................................................................................................... 19
V. RELIEF REQUESTED ......................................................................................................... 26

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TABLE OF AUTHORITIES
Cases
American Pipe & Constr. v. Utah, 414 U.S. 538 (1974) ................................................................ 2
Ameritech Ben. Plan Comm. v. Commc’n Workers of Am., 220 F.3d 814 (7th Cir. 2000) .......... 15
Barrett v. Forest Labs., Inc., No. 12 v. 5224, 2015 WL 5155692 (S.D.N.Y. Sept. 2, 2015) 16, 17,
24
Blount v. U.S. Sec. Assocs., 945 F. Supp. 2d 88 (D.D.C. 2013) ............................................ passim
Bradley v. Vox Media, Inc., No. CV 17-1791 (RMC), 2019 WL 1060804 (D.D.C. Mar. 6, 2019)
................................................................................................................................... 2, 16, 17, 18
Campeau v. NeuroScience, Inc., 86 F. Supp. 3d 912 (W.D. Wis. 2015) ...................................... 24
Castillo v. P&R Enters., Inc., 517 F. Supp. 2d 440 (D.D.C. 2007) .............................................. 26
Chase v. AIMCO Properties, L.P., 374 F. Supp. 2d 196 (D.D.C. 2005) ................................ 18, 24
Coates v. Farmers Grp., Inc., No. 15-CV-01913-LHK, 2015 WL 8477918 (N.D. Cal. Dec. 9,
2015)........................................................................................................................ 15, 16, 17, 25
Crawford v. ExlService.com, LLC, 16 Civ 9137 (LAP), 2019 WL 5887214 (S.D.N.Y. Nov. 12,
2019).......................................................................................................................................... 24
Earl v. Norfolk State Univ., No. 2:13CV148, 2014 WL 6608769 (E.D. Va. Nov. 18, 2014) 16, 23,
24
Ebbert v. Nassau County, No. 05-5445, 2007 WL 2295581 (E.D.N.Y. Aug. 9, 2007) ......... 17, 24
Freeman v. Medstar Health Inc., 187 F. Supp. 3d 19 (D.D.C. 2016) ................................... passim
Galloway v. Chugach Gov’t Servs., Inc., 263 F. Supp. 3d 151 (D.D.C. 2017) ..................... passim
Harris v. Med. Transp. Mgmt., Inc., 317 F. Supp. 3d 421 (D.D.C. 2018) ................................ 1, 19
Hoffman-La Roche v. Sperling, 493 U.S. 165 (1989) ............................................................... 1, 15
Hunter v. Sprint Corp., 346 F. Supp. 2d 113 (D.D.C. 2004) ........................................................ 26
Kassman v. KPMG LLP, No. 11-3743, 2014 WL 3298884 (S.D.N.Y. July 8, 2014) 16, 17, 23, 25
Meyer v. Panera Bread Co., 344 F. Supp. 3d 193 (D.D.C. 2018) .................................... 15, 18, 26
Moore v. Publicis Groupe SA, No. 11 Civ. 1279, 2012 WL 2574742 (S.D.N.Y. June 29, 2012)16,
25
Morris v. Lettire Const., Corp., 896 F. Supp. 2d 265 (S.D.N.Y. 2012) ....................................... 25
Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) ...................................................................... 16
Rehwaldt v. Elec. Data Sys. Corp., No. 95-876, 1996 WL 947568 (W.D.N.Y. Mar. 28, 1996) .. 24
Rochlin v. Cincinnati Ins. Co., No. IP00-1898, 2003 WL 21852341 (S.D. Ind. July 8, 2003) ... 24
Smith v. Merck & Co., No. CV 132970MASLHG, 2016 WL 1690087 (D.N.J. Apr. 27, 2016) .. 24
Songu-Mbriwa v. Davis Mem'l Goodwill Indus., 144 F.R.D. 1 (D.D.C. 1992) ............................ 15
Spencer v. No. Parking Today, Inc., No. 12 Civ 6323, 2013 WL 1040052 (S.D.N.Y. Mar. 15,
2013).......................................................................................................................................... 25
Stephens v. Farmers Rest. Grp., 291 F. Supp. 3d 95 (D.D.C. 2018) ..................................... passim
Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982) ............................................................. 14, 15
Winfield v. Citibank, N.A., 843 F. Supp. 2d 397 (S.D.N.Y. 2012) ............................................... 17
Statutes
29 U.S.C. § 206 ............................................................................................................................. 14
29 U.S.C. § 216 ......................................................................................................................... 1, 14
29 U.S.C. § 256 ............................................................................................................................... 1

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I.

INTRODUCTION
Named Plaintiffs Nilab Rahyar Tolton, Andrea Mazingo, Meredith Williams, Saira Draper,

Katrina Henderson, and Jaclyn Stahl (“Named Plaintiffs” or “Plaintiffs”) were employed by
Defendant Jones Day (“Jones Day” or “the Firm”). In addition to their claims under Title VII of
the Civil Rights Act and state laws, Plaintiffs allege under the Equal Pay Act (“EPA”), 29 U.S.C.
§§ 206(d), 216(b), that Jones Day paid them and similarly situated female associates less than men
performing substantially equal work.
Unlike claims brought under Title VII, which are certified under Federal Rule of Civil
Procedure 23, claims brought under the Equal Pay Act are subject to a two-stage certification
process. The first stage, called conditional certification, is determined early in the case to enable
potential members of the collective action to affirmatively “opt-in” to become part of the suit. 29
U.S.C. §§ 216(b), 256.
As the Supreme Court has explained, the purpose of the opt-in provisions of § 216(b),
which govern claims under the EPA and the Fair Labor Standards Act (“FLSA”), “depend[s] on
employees receiving accurate and timely notice concerning the pendency of the collective action,
so that they can make informed decisions about whether they participate.” Hoffman-La Roche v.
Sperling, 493 U.S. 165, 170 (1989). In order to achieve this benefit, however, employees must
receive “accurate and timely notice concerning the pendency of the collective action, so that they
can make informed decisions about whether to participate.” Id. Early authorization of notice is
necessary because, unlike claims certified under Federal Rule of Civil Procedure 23, the statute of
limitations continues to run on each plaintiff’s Equal Pay Act claim until that plaintiff files a
consent to join the conditionally certified collective action. 29 U.S.C. § 256(b); see Harris v. Med.
Transp. Mgmt., Inc., 317 F. Supp. 3d 421, 425–26 (D.D.C. 2018); Stephens v. Farmers Rest. Grp.,

1

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291 F. Supp. 3d 95, 120 (D.D.C. 2018) (“The filing of the complaint does not toll the limitations
period for opt-in plaintiffs’ FLSA claims; the statute of limitations continues to run until they
affirmatively join the action.”); cf. American Pipe & Constr. v. Utah, 414 U.S. 538, 554 (1974)
(tolling the statute of limitations for class claims certified under Rule 23). Indeed, the very benefits
intended under § 216(b)—enabling employees to join together to vindicate their rights and judicial
economy—will disappear if opt-in plaintiffs do not receive notice of a lawsuit before the statute
of limitations expires on their claims.
Conditional certification is appropriate here.1 The standard the Court applies at this
conditional certification stage is lenient and Plaintiffs’ burden is minimal. Plaintiffs need only
make a “modest factual showing” that a potential class of plaintiffs exists who “may be similarly
situated” to the Named Plaintiffs. Bradley v. Vox Media, Inc., No. CV 17-1791 (RMC), 2019 WL
1060804, at *2–3 (D.D.C. Mar. 6, 2019) (quoting Freeman v. Medstar Health Inc., 187 F. Supp.
3d 19, 29 (D.D.C. 2016)). Thus, plaintiffs need only offer “some evidence . . . of a factual nexus
between the manner in which the employer’s alleged policy affected a plaintiff and the manner in
which it affected other employees.” Galloway v. Chugach Gov’t Servs., Inc., 263 F. Supp. 3d 151,
156 (D.D.C. 2017) (Moss, J.) (internal quotation omitted).
Plaintiffs far exceed this standard. Plaintiffs worked in multiple Jones Day offices and
practice groups, and each has been subjected to a common compensation practice that results in
women earning less than men for substantially equal work. All are challenging the same

1

Pursuant to their obligations under Local Rule 7(m), counsel for Plaintiffs met and conferred
telephonically with counsel for Defendant on December 2, 2019. During this call, counsel for Jones
Day confirmed that Defendant would not agree to the relief requested, namely that the parties
stipulate to conditional certification under the Equal Pay Act (“EPA”), 29 U.S.C. §§ 206(d),
216(b), so that notice of collective action may be issued to all female associates who worked for
Jones Day since April 3, 2016.
2

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compensation policy, under which every associate’s compensation is determined in a “black box,”
with final decisions made by the Firm’s Managing Partner, Stephen J. Brogan.2 All are alleging
that this compensation policy results in Jones Day paying women less than men in jobs requiring
substantially equal work. At the current stage––early in the discovery process and well before
completion of discovery into Jones Day’s policies, practices, procedures, and compensation
disparities––Plaintiffs present evidence demonstrating that Jones Day’s compensation policies
apply to all members of the collective, regardless of their geographical location or practice group.
Plaintiffs’ allegations and deposition testimony establish, for purposes of issuing conditional
certification notice, that similarly situated individuals exist and are or have been subjected to the
same discriminatory pay disparity as the Named Plaintiffs. For these reasons, the Named Plaintiffs
and members of the proposed collective are “similarly situated” under 29 U.S.C. § 216(b).
Plaintiffs respectfully request the Court conditionally certify the collective and authorize notice to
female associates who have been employed at Jones Day since April 3, 2016, or three years prior
to the filing of this litigation.
II.

FACTUAL BACKGROUND
A.

Plaintiffs Bring the Proposed Collective Action on Behalf of All Female
Associates at Jones Day

Plaintiffs seek authorization of collective action notice to female associates who have been
employed at Jones Day since April 3, 2016, three years before the filing of this Complaint. Upon
information and belief, hundreds of individuals meet this definition.
B.

Compensation at Jones Day Is Determined Through a Centralized Process by
a Centralized Management

At Jones Day, compensation for every associate in its eighteen U.S. offices is determined

2

See Section II.A., infra.
3

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in a “black box” centralized system led by Managing Partner Brogan. The Firm has explained that
Managing Partner Brogan has “autocratic and absolute” power over Firm decisions and is the
“final decision-maker” on “partner and associate compensation.” Dkt. No. 41, Third Am. Compl.
¶¶ 7–9 (hereinafter “TAC”) (citing “Legal Eagles: Stephen Brogan,” Washington Life Magazine
(May 9, 2018), http://washingtonlife.com/2018/05/09/legal-eagles-stephen-brogan/ (last visited
Apr.

3,

2019));

Exhibit

G,

Client

Services

https://www.jonesday.com/principlesandvalues/clientservices/ (as of Apr. 2, 2019)); see Dkt. No.
57, Def.’s Answer to Third Am. Compl. ¶ 9 (hereinafter “Answer”) (admitting that the Managing
Partner approves increases in starting salaries and market-based moves). Indeed, Jones Day
directly instructs its employees that the
Ex. J, Jones Day Manual, at JD_00002315; see also Ex. A, Pl. Nilab Rahyar
Tolton Dep. 38:6–38:12 (explaining that Jones Day told her during her recruitment that Stephen
Brogan “made all of the compensation decisions for the firm”); Ex. F, Pl. Jaclyn Stahl Dep. 70:8–
70:12 (testifying that
); Ex. B, Pl. Andrea Mazingo Dep. 75:3–75:5 (

); Ex. E, Pl. Katrina Henderson Dep.

55:12–55:15 (same).
Similarly, when Plaintiffs

. See Ex. B, Mazingo Dep. 74:13–75:3 (noting
her supervisors were

4

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); Ex. F, Stahl Dep. 80:7–80:8 (explaining that Partner Darren Cottriel indicated that he did
not have control over Plaintiff Stahl’s compensation); id. 99:5–99:10 (“[Administrative Partner]
Darren [Cottriel] told me that he had no control over whether I could have a raise,” indicating “to
me that he did not have control over . . . associate compensation.”).
Indeed, when some of the Named Plaintiffs attempted to appeal their compensation, they
were told that their compensation was final and could not be appealed. See TAC ¶¶ 310, 232; Ex.
A, Tolton Dep. 145:17–146:12

); Ex. E, Henderson Dep. 132:20–132:23 (explaining that a Jones Day practice
leader told her there was “nothing he could do” about her compensation); Ex. C, Williams Dep.
110:21–111:111 (describing how she was discouraged from challenging her compensation and
requesting a raise because it would “attract the wrong attention” and “reflect badly” on her); Ex.
A, Tolton Dep. 230:10–230:16

).
Every year, Partner Brogan sends compensation letters informing all associates,
nationwide, what they will be paid in the upcoming year. Ex. A, Tolton Dep. 91:3–91:25; Ex. B,
Mazingo Dep. 260:13–260:16 (“I know that any [salary] recommendations ultimately would have
been made to Steve Brogan, who signed each letter.”); Ex. E, Henderson Dep. 117:6–117:8. These
, and are marked
as “CONFIDENTIAL.” Ex. A, Tolton Dep. 92:24–93:3; Ex. B, Mazingo Dep. 146:18–146:25; Ex.

5

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C, Williams Dep. 137:20–137:23.
Associates’ compensation is further centralized as part of the annual evaluation process.
Specifically, within Jones Day’s “black box” compensation system, the Firm, led by Managing
Partner Brogan––who makes the ultimate decision on compensation––
. TAC ¶ 10; Ex. F, Stahl Dep. 132:7–
132:10. A consensus statement supposedly condenses and combines the associate’s evaluations,
hours, and engagements into a paragraph that supposedly captures the associate’s overall
performance and future trajectory. Id.; Ex. A, Tolton Dep. 135:22–136:5; Ex. F, Stahl Dep. 132:4–
132:7. However, Plaintiffs in different offices were told by others at the Firm
.
See Ex. A, Tolton Dep. 135:5–137:4 (explaining that
); Ex. F, Stahl Dep. 131:17–132:17
(explaining that

); Ex. D,

Draper Dep. 107:20–108:8 (detailing her understanding that
).

. See, e.g., Ex. L, Stahl Dep. Exhibit
17; Ex. M, Williams Dep. Exhibit 11; Ex. N, Mazingo Dep. Exhibit 3.
C.

Plaintiffs Allege That Under This Policy, They Were Paid Less Than Men for
Substantially Equal Work

Plaintiffs also allege that these compensation policies and practices result in Jones Day
paying female associates less than male associates for substantially equal work. TAC ¶ 46. Unlike
certification under Rule 23, statistical evidence of pay disparities is not required at the first,
conditional certification stage. Plaintiffs have limited access to information about what Jones Day
6

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pays others due to the Firm’s enforced compensation secrecy policy and Jones Day’s refusal to
provide firm-wide payroll data. Jones Day has publicly stated that “[t]he financial relationship of
a lawyer to Jones Day is confidential” and that “[o]ther than the very small number of people who
advise the Managing Partner” attorneys do not “know[] anything about the amount of income
allocated” to others. Ex. H, Principles & Values: Compensation: Confidentiality, Jones Day,
https://www.jonesday.com/principlesandvalues/compensation/confidentiality/ (as of July 7,
2019); see also Ex. J, Jones Day Manual, JD_00002314

); Ex. B, Mazingo Dep. 42:25–43:5 (“Jones
Day had made it clear to me that there was a strict policy of pay confidentiality, and so I didn’t
discuss my salary or other associates’ salary information with almost anyone.”); Ex. A, Tolton
Dep. 22:13–22:21 (explaining that Jones Day told her Firm policy provided that no one knows the
compensation of any other attorney); id. at 95:2–95:6 (stating that

); Ex. C, Williams Dep. 349:4–349:18 (noting the
confidentiality of their compensation letters); Ex. D, Draper Dep. 82:14–83:9 (explaining that the
pay secrecy policy was touted during her recruitment); Ex. O, Stahl Dep. Exhibit 12 (
).
Despite this confidentiality policy, Plaintiffs nonetheless present significant evidence
illustrating that Jones Day pays female associates less than male associates engaging in
substantially equal work.

7

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1. Jones Day Fails to Pay “Market Pay” to Top-Performing Female
Associates
First, Plaintiffs have alleged that Jones Day pays women far less than market, or “Cravath,”
compensation, while men are largely paid “at or above the upper level of the markets in which [it]
operate[s].” TAC ¶ 44. Plaintiffs have explained that during their recruitment for Jones Day and
throughout their time at the Firm they understood from the Firm that it paid top performers at or
above market rate and that “market” was synonymous with the “Cravath” market pay. See Ex. A,
Tolton Dep. 27:12–27:19; 240:7–240:11; Ex. B, Mazingo Dep. 23:1–23:18; Ex. C, Williams Dep.
51:18–52:4, 148:2–148:4; Ex. D, Draper Dep. 123:12–123:13; 123:22–123:25; Ex. E, Henderson
Dep. 113:13–113:18; 153:3–153:12; 156:14–156:21; Ex. F, Stahl Dep. 106:5–106:8. Indeed, in
preparing to speak with recruits, Plaintiff Williams was told that she should describe Jones Day’s
compensation in terms of “market” pay and that everyone understood “market” to be synonymous
with “Cravath.” Ex. C, Williams Dep. 46:12–48:3. Plaintiffs Williams and Stahl testified that they
understood based on their own compensation, as well as conversations they had with a small
number of their colleagues, that female associates, even top performers, were consistently paid
under market. Ex. C, Williams Dep. 75:17-76:20; Ex. F, Stahl Dep. 157:24-158:4; id. at 146:3–
146:23. This pattern of paying women, including women with outstanding performance reviews,
less than the prevailing market rate that Jones Day purported to pay top performers, indicates that
Jones Day pays women less than their male colleagues. See, e.g., Ex. C, Williams Dep. 75:1776:20; Ex. F, Stahl Dep. 157:24-158:4. Notably, Jones Day has never denied that a disparity exists.
2. Jones Day’s Entrenched Discriminatory Environment Plausibly Extends
to Plaintiffs’ Compensation
Plaintiffs’ understanding that they were paid less than men performing substantially equal
work becomes even more plausible when viewed in light of Plaintiffs’ observations and

8

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experiences of gender discrimination and sexual harassment throughout their time at the Firm. See,
e.g., Ex. D, Draper Dep. 134:16–134:21 (testifying that based on the “culture at Jones Day of
treating men differently from women,” she understood this “preferential treatment . . . extend[ed]
to other areas, including compensation”); Ex. F, Stahl Dep. 195:19–195:22 (explaining “policies
and practices of the firm perpetuated gender discrimination”). The record is filled with evidence
of discrimination, including gendered comments and harassment,3 limited advancement

3

Ex. C, Williams Dep. 213:17–214:25 (describing a situation in which male associates and
partners encouraged female associates and summer associates to engage in a “game” of “Marry,
Fuck, Kill,” which made many of the female associates uncomfortable); id. at 193:15–193:23
(explaining that male partners referred to Plaintiff Stahl as having a “resting bitch face”); Ex. F,
Stahl Dep. 432:16–24 (describing a situation where a male partner reached into Ms. Stahl’s suit
pocket); Ex. D, Draper Dep. 73:15–74:3 (explaining that a male partner had expressed surprise
that women were able to continue working after they had children); Ex. A, Tolton Dep. 192:11–
193:10 (discussing negative comments male partners made regarding Plaintiff Tolton missing
work because of her pregnancy and how male partners track the comings and goings of female
attorneys but not male attorneys); id. 243:19–244:5 (testifying a male associate
); Ex. B,
Mazingo Dep. 84:17–89:25 (explaining that she was tasked with planning lunches for female
attorneys, that a male associate asked whether they would talk “about babies and weddings,” and
that another male partner asked whether Plaintiff Mazingo was a “lipstick lawyer” in reference to
the cardboard cutout of a lipstick tube that Plaintiff Mazingo was required to place outside her
office to advertise a women’s event); id. 104:15–105:10 (testifying a partner referred to their
working dinner as a “date” and told Plaintiff Mazingo that he was single and was “looking” after
Plaintiff Mazingo’s engagement ended).
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opportunities,4 discrimination in work,5 and gendered criticism in performance evaluations.6
Indeed,

, TAC ¶ 10; Ex. F, Stahl

Dep. 132:7–132:10, and Plaintiffs understand that the centralized and subjective consensus
statements do not accurately reflect their work performance and include gendered criticism. See
Ex. A, Tolton Dep. 139:6–139:24 (expressing concern that
); Ex. C,

4

Ex. C, Williams Dep. 280:7–280:9; 284:9–284:22 (testifying Plaintiff Williams talked with
others about female associates not advancing at the Firm); id. at 394:18–395:17 (testifying a
partner stated that female associates left the Firm to have families); id. at 428:24–429:11
(explaining male partners may prefer to work with male associates because they understood female
associates would leave the Firm to start families); Ex. A, Tolton Dep. 277:24–278:21 (
); Ex. F, Stahl Dep. 291:14–291:24 (detailing a conversation with Partner Michelle
Blum in which Plaintiff Stahl was told that to succeed at Jones Day, she “had to hang with the
boys, essentially be like the men”); Ex. E, Henderson Dep. 62:5–63:4 (describing a “bro culture”
in which “stereotypically male behavior was valued, where men would support other men. The
way for women to succeed at the firm was to adopt that stereotypical male behavior. And if you
did not . . . then you were not accepted and you were restricted from opportunities that men were
given. You were not given the kind of mentorship opportunities and kind of guiding you along”);
see also Ex. K, JD_00005693,
).
5
Ex. D, Draper Dep. 134:16–134:19 (explaining that there was a “culture” at Jones Day of treating
female associates differently); Ex. B, Mazingo Dep. 292:17–293:7 (discussing preferential
treatment given to men); Ex. E, Henderson Dep. 319:6–320:15, 322:14–322:16 (explaining Jones
Day suppressed her hours
).
6
Ex. C, Williams Dep. 198:7–198:21 (noting that Plaintiff Stahl was criticized for not smiling
while male associates were not); Ex. D, Draper Dep. 280:14–280:19 (explaining that a partner
); Ex. F, Stahl Dep. 196:8–196:15
(detailing how she was criticized for her appearance, rather than her work performance, and that
Partner O’Connor “screamed at female associates but did not scream at male associates”); id.
194:2–194:4, 402:2–402:25 (noting that a male associate
); Ex. A, Tolton Dep. 361:17–362:10;
365:17–366:2 (explaining that while a male associate was permitted to turn down work, female
associates were criticized for doing so); id. 492:2–492:17 (explaining that although she was
terminated after taking maternity leave, another male associate was not terminated for calling a
female associate a “cunt”); Ex. E, Henderson Dep. 251:25–253:19 (explaining that female
associates were held to a higher standard for availability than male associates); id. 271:16–272:3
(explaining that she was chastised for working from home while male associates were not and that
that same disparate treatment appeared in her reviews).
10

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Williams Dep. 245:13–245:21 (explaining that
); Ex. F, Stahl Dep. 232:25–233:12 (noting that

); id. at 188:25–189:8 (explaining that she understood she
could no longer succeed at Jones Day in part because, unlike male attorneys, she was criticized for
her appearance despite her excellent work); Ex. B, Mazingo Dep. 25:19–27:13 (noting that, unlike
peer firms, Jones Day takes no steps to ensure evaluations are free from bias); Ex. E, Henderson
Dep. 268:6–269:6 (explaining that because the evaluations were based on discriminatory policies,
she believed that some of her evaluations were discriminatory).

. See Ex. D, Draper Dep. 105:19–107:6 (
); Ex. A, Tolton Dep.
145:17–146:12; id. at 228:5–230:16.
3. The Named Plaintiffs Have Identified Male Comparators Who, on
Information and Belief, Were Paid More
While Jones Day enforces a firm-wide policy of compensation secrecy, Plaintiffs have also
provided evidence indicating that, due to Jones Day’s centralized compensation and evaluation
policies, the Named Plaintiffs were underpaid relative to specific male comparators. For example,
Plaintiff Henderson alleges that she received lower raises than male associates Bret Stancil,
Harrison Golden, Zachary Werner, Andrew Burchiel, Samuel Goldstein, and David Katz. TAC ¶
287; see also Ex. E, Henderson Dep. 92:24–93:7, 162:25–163:18 (naming those individuals and
people she worked with on projects); id. at 117:6–118:15 (explaining that
). Similarly, Plaintiff Williams alleges on information and
belief that she was paid less than Steven Gersten, Harrison Golden, Gregory Martin, Adrian
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Garcia, and Robert Dahnke. TAC ¶ 165; see also Ex. C, Williams Dep. 162:4–162:11, 163:4–
164:20 (identifying Martin, Garcia, and Dahnke as possible comparators).
. Ex. A, Tolton
Dep. 240:24–241:4; 245:24–246:7; 391:2–391:10 (
). Plaintiffs Mazingo,
Draper, and Stahl named male comparators as well. TAC ¶ 142 (naming Associate Rob Tiefenbrun
as a fellow associate to Plaintiff Mazingo on then-Partner Landau’s team); Ex. B, Mazingo Dep.
298:1–2 (naming Rob Tiefenbrun as a comparator); TAC ¶ 187 (stating that Plaintiff Draper was
paid less than at least one Atlanta male associate who was a year junior to Plaintiff Draper); Ex.
F, Stahl Dep. 158:5–7, 274:21–275:6, 288:12–289:6 (naming
). Additionally, Plaintiff Tolton testified

. Ex. A, Tolton Dep. 507:22–509:5.
4. Plaintiffs Performed Substantially Similar Work as Other Jones Day
Associates
Finally, the Named Plaintiffs have pointed to evidence illustrating that they perform
substantially equal work as other associates at the Firm. Jones Day presents itself as being a single
establishment across all offices, calling itself “One Firm Worldwide” and stating that “[o]ur
lawyers work across offices, practices, and continents” and that “[w]e are not a constellation of
individuals and offices and practices. We have no ‘branch’ or ‘satellite’ offices and no
headquarters.”7 Jones Day treats associate work as interchangeable, and Jones Day associates

7

A Global Institution: One Firm Worldwide, Jones Day, https://www.jonesdaycareers.com/#/onefirm-and-a-global-institution#pane_0 (last viewed on Dec. 4, 2019); see also Ex. A, Tolton Dep.
63:14–64:5; 391:19–391:25 (describing how Jones Day branded itself as “One Firm Worldwide”
to Plaintiff Tolton and modeled its working culture around this concept); Ex. E, Henderson Dep.
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routinely work in other practice groups and offices. See, e.g., TAC ¶ 138 (noting Plaintiff Mazingo
assisted the Global Disputes Practice Group even though she was in the Securities Litigation and
SEC Enforcement Practice Group); Ex. D, Draper Dep. 78:6–78:15; 143:7–143:11 (explaining that

); Ex. A, Tolton Dep. 97:14–97:17
(recalling that Plaintiff Tolton worked with both the Securities Litigation group and the Trial
Practice group); id. at 163:15–164:2 (describing that

); Ex. B, Mazingo Dep. 68:25–69:8 (noting that Plaintiff Mazingo had been a member of
the Securities Litigation group, the Global Disputes group, the New Lawyers group, and
Commercial Litigation team); id. at 300:13–300:16 (explaining that Associate Bart Green was
working in at least three different practice groups); Ex. E, Henderson Dep. 340:14–340:18
(explaining that she worked on various projects for the Real Estate practice group, the Mergers
and Acquisitions group, and assisted on capital markets in New York); Ex. C, Williams Dep.
94:19–94:23, 97:5–97:8 (stating that Plaintiff Williams worked in the Intellectual Property group,
the Healthcare group and in the General Litigation group); id. at 92:15–93:3 (explaining that she
would often be staffed on large litigation projects across offices and practice groups); Ex. F, Stahl
Dep. 60:3–60:12 (explaining that

); id. 161:6–161:10 (explaining that an associate transferred
between offices).

69:18–69:25 (discussing the “One Firm Worldwide” brand and explaining that she often did work
outside the New York office and that attorneys transitioned between offices in different states).
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The Named Plaintiffs have also testified about the work they do and how it is substantially
equal to their comparators. See, e.g., Ex. A, Tolton Dep. 391:17–392:9; 399:16–403:6 (describing
the work and responsibilities she shared with Justin Smith, such as reviewing motions, briefs and
documents; taking and defending depositions; appearing in court; and participating in mediations);
Ex. B, Mazingo Dep. 299:6–300:6 (naming male comparators and explaining that although they
were mostly senior associates, she engaged in “interchangeable” tasks and her abilities were
trusted as equally as theirs were); Ex. C, Williams Dep. 141:2–141:19 (noting she believed her
comparators performed the same types of tasks and had similar skills in part because they attended
the same trainings and learned the same skills); Ex. D, Draper Dep. 142:21–143:4, 237:13–237:19
(describing how

); Ex. F, Stahl Dep. 288:9–288:25 (explaining that she
worked on a project with James Burnham and that Andrew Bentz used Plaintiff Stahl’s work when
submitting a project to a partner, showing that they did “equal” work); Ex. E, Henderson Dep.
102:21–103:2 (describing a project she worked on with Andrew Burchiel); id. at 159:8–159:17
(discussing that she and Stancil were both new lawyers and held to the same standards); id. at
163:7–163:18 (discussing that she performed the same type of work as Werner and other members
of the New Lawyers Group engaged in). Nevertheless, Jones Day compensates female associates
less than male associates for substantially equal work. TAC ¶ 370.
III.

LEGAL STANDARD
Certification of Equal Pay Act claims is governed by 29 U.S.C. § 216(b), which also

governs FLSA certification. 29 U.S.C. §§206(d), 216(b); Thompson v. Sawyer, 678 F.2d 257, 269
(D.C. Cir. 1982) (members of the class in an EPA action may recover if they “opt-in” under §

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216(b)); Ameritech Ben. Plan Comm. v. Commc’n Workers of Am., 220 F.3d 814, 820 (7th Cir.
2000) (noting the EPA incorporates the requirements of the FLSA “opt-in” procedure); Coates v.
Farmers Grp., Inc., No. 15-CV-01913-LHK, 2015 WL 8477918, at *5 (N.D. Cal. Dec. 9, 2015)
(“The EPA . . . incorporates the FLSA’s enforcement and collective action provisions.”).
In Section 216(b), “Congress has stated its policy that . . . plaintiffs should have the
opportunity to proceed collectively” because a collective action serves the twin goals of judicial
economy and the lowering “of individual costs to vindicate rights by the pooling of resources.”
Hoffmann-LaRoche, 493 U.S. at 170. Unlike class actions brought under Rule 23 of the Federal
Rules of Civil Procedure, certification of collective actions is appropriate under § 216(b) if the
Named Plaintiffs and members of the proposed collective are “similarly situated” with respect to
their claims. Thompson, 678 F.2d at 269 (“Suits for recovery under the Equal Pay Act differ from
the mainstream of class actions under the Federal Rules.”); Galloway, 263 F. Supp. 3d at 154
(Moss, J.) (explaining that Rule 23’s procedural safeguards of numerosity, commonality, and
typicality are inapposite for certification under § 216(b)); Songu-Mbriwa v. Davis Mem’l Goodwill
Indus., 144 F.R.D. 1, 1–2 (D.D.C. 1992) (holding an EPA collective action cannot be certified
under Rule 23). As this Court has noted, unlike class actions certified under Federal Rule of Civil
Procedure 23, § 216(b) requires members of the collective to affirmatively opt in to the litigation,
and for this reason the due process concerns underlying Rule 23 are inapplicable. Galloway, 263
F. Supp. 3d at 154–55.
Courts in this circuit have adopted a two-stage certification procedure for claims certified
under § 216(b). See, e.g., Freeman, 187 F. Supp. 3d at 22 (“[C]ourts in this Circuit and others have
settled on a two-stage inquiry for determining when a collective action is appropriate[.]”);
Galloway, 263 F. Supp. 3d at 155 (recognizing and applying two-stage certification); Meyer v.

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Panera Bread Co., 344 F. Supp. 3d 193, 200 (D.D.C. 2018) (same); Bradley, 2019 WL 1060804,
at *2 (“A collective action under the FLSA does not require certification under [Rule] 23.”). Other
federal courts also adhere to this same two-stage process. See, e.g., Barrett v. Forest Labs., Inc.,
No. 12 v. 5224, 2015 WL 5155692, at *1 (S.D.N.Y. Sept. 2, 2015); Coates, 2015 WL 8477918, at
*5 n.3 (collecting cases from several federal circuits); Kassman v. KPMG LLP, No. 11-3743, 2014
WL 3298884, at *5, 9 (S.D.N.Y. July 8, 2014) (acknowledging two-step approach and
conditionally certifying a collective of tax and consulting professionals); Moore v. Publicis Groupe
SA, No. 11 Civ. 1279, 2012 WL 2574742, at *9, 13 (S.D.N.Y. June 29, 2012) (noting “two-step
formula commonly followed by district courts in collective actions” and conditionally certifying a
collective of public relations management employees); Earl v. Norfolk State Univ., No.
2:13CV148, 2014 WL 6608769, at *4, 9 (E.D. Va. Nov. 18, 2014) (applying two-stage
certification to EPA collective action to conditionally certify a collective of teaching faculty).
The first stage, or notice stage, occurs early in the litigation. The purpose of stage one
conditional certification is to “facilitate notice of the collective action to potential plaintiffs to give
them the opportunity to opt in to the litigation.” Blount v. U.S. Sec. Assocs., 945 F. Supp. 2d 88,
92 (D.D.C. 2013). Plaintiffs’ burden at this stage is low. Plaintiffs need merely to make a “modest
factual showing that the named and potential plaintiffs together were victims of a common policy
or plan that allegedly violated the law.” Galloway, 263 F. Supp. 3d at 155 (internal quotation marks
omitted and alteration incorporated); see also Bradley, 2019 WL 1060804, at *2. Courts in this
Circuit have consistently and recently emphasized that the factual showing “should remain a low
standard of proof because the purpose of this first stage is merely to determine whether ‘similarly
situated’ plaintiffs do in fact exist.” Freeman, 187 F. Supp. 3d at 22–23 (quoting Myers v. Hertz
Corp., 624 F.3d 537, 555 (2d Cir. 2010)). Thus, plaintiffs need only offer “some evidence . . . of a

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factual nexus between the manner in which the employer’s alleged policy affected a plaintiff and
the manner in which it affected other employees.” Galloway, 263 F. Supp. 3d at 156 (internal
quotation marks omitted); Freeman, 187 F. Supp. 3d at 23. Notably, Plaintiffs do not need to
present “proof that those potential plaintiffs are, actually, similarly situated before those potential
plaintiffs even identify themselves.” Bradley, 2019 WL 1060804, at *3 (quoting Freeman, 187 F.
Supp. 3d at 29).
Importantly, members of the collective need be “similarly situated” only with respect to
their allegations that the law has been violated. Stephens v. Farmers Rest. Grp., 291 F. Supp. 3d
95, 105–06 (D.D.C. 2018) (proposed class need only consist of “plaintiffs who may be ‘similarly
situated’ to the named plaintiffs with respect to whether a FLSA violation has occurred”); see also
Barrett, 2015 WL 5155692, at *2–3; Kassman, 2014 WL 3298884, at *6–7; Ebbert v. Nassau
County, No. 05-5445, 2007 WL 2295581, at *2 (E.D.N.Y. Aug. 9, 2007) (“[C]ourts have held that
plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that
they and potential plaintiffs together were victims of a common policy or plan that violated the
law.”). “The plaintiffs need not demonstrate that they are similarly situated in every respect,
provided they are similarly situated with respect to the . . . violations they allege.” Winfield v.
Citibank, N.A., 843 F. Supp. 2d 397, 404 (S.D.N.Y. 2012). In other words, it is not necessary for
Plaintiffs to demonstrate that they worked in the same office, practice group, or that they performed
the same work or suffered the same damages—just that they are similarly situated with respect to
their claims. Id.; see also Blount, 945 F. Supp. 2d at 95; Coates, 2015 WL 8477918, at *9–10;
Earl, 2014 WL 6608769, at *4; Stephens, 291 F. Supp. 3d at 106 (noting a defendant cannot defeat
a motion for conditional certification by “pointing to immaterial variations in how the improper
policies alleged by the plaintiff were applied[,]” nor by pointing to differences in damages that

17

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may be calculated on an individualized basis after a collective trial on liability).
In light of this low evidentiary burden, courts in this Circuit have repeatedly held that this
standard is satisfied based on only pleadings and affidavits. Bradley, 2019 WL 1060804, at *3;
Blount, 945 F. Supp. 2d at 93; Chase v. AIMCO Properties, L.P., 374 F. Supp. 2d 196, 200 (D.D.C.
2005). For example, in Galloway v. Chugach Government Services, Inc., this Court conditionally
certified a collective based only on a single declaration that addressed the similarly situated issue
“only in general terms.” 263 F. Supp. 3d at 156.
Importantly, at this stage, courts cannot resolve factual disputes or make credibility
determinations and do not consider competing evidence offered by defendants. Blount, 945 F.
Supp. 2d at 97 (denying a defendant’s motion for pre-conditional certification discovery because
“the Court’s task at this stage is not to resolve factual disputes, so allowing defendants to expand
the record as requested likely would serve no useful purpose”); Stephens, 291 F. Supp. 3d at 105
(noting a defendant cannot defeat certification by “contradicting plaintiffs’ claims” with
“voluminous documentation purporting to show that no violations occurred” (internal quotation
marks omitted)). This is because “the Court’s task at this stage is not to resolve factual disputes,”
Blount, 945 F. Supp. 2d at 97, and “issues going to the merits are not appropriate for consideration
at this juncture,” id. 94.
Defendants also cannot defeat conditional certification based on arguments that collective
treatment is inappropriate due to individualized inquiries. See, e.g., Meyer, 344 F. Supp. at 207–
08 (“[A]lthough defendants often argue that the necessity of fact-intensive individualized inquiries
will render a collective action unmanageable, courts tend not to consider such arguments at
the conditional certification stage, and, instead, put these issues off until the decertification stage,
when discovery is complete.” (internal quotation marks omitted)); see also Freeman, 187 F. Supp.

18

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3d at 31 (concluding that “any further consideration of manageability issues is properly postponed
until after other ‘similarly situated’ employees have had an opportunity to opt-in” because “further
discovery, potential dispositive motions, and any motions for ‘de-certification’ [at stage two] have
the potential to further shape the scope of the case”).
The second stage of EPA certification occurs after members of the collective have been
given the opportunity to opt in and discovery has concluded. At this stage, the defendant may move
for “decertification,” at which point the court will “on a fuller record, determine whether . . . the
plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs,” Freeman, 187
F. Supp. 3d at 22 (emphasis added), requiring a “more searching inquiry” than stage one, Stephens,
291 F. Supp. 3d at 105 (internal quotation marks omitted).
IV.

ARGUMENT
Plaintiffs’ preliminary evidence far exceeds their minimal burden at the notice stage. In

addition to allegations from their Amended Complaint, Plaintiffs present documentary evidence
demonstrating that Jones Day has firm-wide compensation policies and procedures, and testimony
from the Named Plaintiffs demonstrating that other members of the collective are also adversely
affected in similar ways by these policies. Courts routinely grant conditional certification based on
a similar evidentiary record, and often with far less evidentiary support. See, e.g., Galloway, 263
F. Supp. 3d at 156–57, 159 (granting plaintiffs’ motion for conditional certification in part even
though only one plaintiff submitted a declaration and the declaration described the plaintiff’s
experiences “in only general terms” based on the declarant’s personal knowledge); Harris, 317 F.
Supp. 3d at 424 (holding that allegations and sworn affidavits were sufficient for conditional
certification).
In its manual, Jones Day explicitly states that

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. See Ex. J, JD_00002392. Jones Day further
describes its compensation policy on its website, where the Firm has admitted that the
compensation process is the same for all associates, regardless of practice group or geographical
office.8 Jones Day has also indicated that compensation decisions are controlled by one individual,
Managing Partner Brogan, who exercises unchecked authority over final compensation decisions.
TAC ¶¶ 6–9 (citing Stephen J. Brogan (Steve): Managing Partner, Jones Day,
https://www.jonesday.com/sjbrogan/ (last visited Dec. 4, 2019); Legal Eagles: Stephen Brogan,
Washington Life Mag. (May 9, 2018), http://washingtonlife.com/2018/05/09/legal-eaglesstephen-brogan/; Firm History, JONES DAY, https://www.jonesday.com/en/firm?tab=history565c8d78-eb12-4229-9e55-12f1c0315999 (last visited Dec. 4, 2019); Ex. G.). Jones Day has
described its compensation policies in other publications, noting Partner Brogan “makes all of the
partnership and compensation decisions for the entire firm.” Id. at ¶¶ 10–11 (citing Matthew
Huisman, Q&A: Jones Day’s Gregory Shumaker, The Blog of Legal Times (June 18, 2013),
https://legaltimes.typepad.com/blt/2013/06/qa-jones-days-gregory-shumaker.html (last visited
Dec. 4, 2019)). Jones Day has affirmed publicly that compensation decisions for all associates,
regardless of geographical office or practice group, are based on the same standard criteria,
including an associate’s “overall contribution, including professional achievement, commitment
to the firm, judgment, client service, efficiency, leadership, productivity, and other appropriate
factors.” TAC ¶ 43 (citing Ex. I, Principles & Values: Compensation: Associates, Jones Day,
https://www.jonesday.com/principlesandvalues/associates/ (as of April 2, 2019)). At this stage, the
Court credits Plaintiffs’ claims based on these representations from Jones Day and must not resolve

8

Ex.
G,
Client
Services,
JONES
https://www.jonesday.com/principlesandvalues/clientservices/ (as of Apr. 2, 2019).
20

DAY,

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factual disputes or consider any contradictory evidence Jones Day may offer. Blount, 945 F. Supp.
2d at 94, 97; Stephens, 291 F. Supp. 3d at 105.
Moreover, the Named Plaintiffs have consistently testified that they understood from Jones
Day that final compensation decisions were made by Managing Partner Brogan and that regional
Partners-in-Charge could not change compensation without authorization from the Firm, led by
Managing Partner Brogan––who makes the ultimate decisions on compensation. See Ex. A, Tolton
Dep. 38:6–38:12 (explaining she was told during her recruitment that Stephen Brogan “made all
of the compensation decisions for the firm”); Ex. B, Mazingo Dep. 74:13–75:3 (noting that

); Ex. F,
Stahl Dep. 99:5–99:10

); Ex. C, Williams Dep. 189:18–189:25 (“I understood from [Partner]
Jim Poth that if I raised an issue of compensation, that that would be something that would need
to go through the . . . firm leadership in D.C. and that it would attract the wrong sort of attention.”).
Similarly, Plaintiffs have explained that Jones Day’s evaluation system, which directly affects their
compensation, is itself centralized outside of their regional offices and practice groups. See supra
Section II.B.
Plaintiffs also testified that Jones Day operates a Firm-wide policy of pay secrecy through
which associates are prohibited from discussing compensation. See, e.g., Ex. A, Tolton Dep.
248:20–248:24 (“Throughout the entire time period I was working at Jones Day, I was very
reluctant and nervous and fearful of discussing my compensation

21

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Ex. B, Mazingo Dep. 42:25–43:5 (“Jones Day had made it clear to me that there was a strict policy
of pay confidentiality, and so I didn’t discuss my salary or other associates’ salary information
with almost anyone.”). To further shroud compensation decisions in secrecy, associates who are
found to have violated the policy are threatened with and subject to adverse treatment. See Ex. A
Tolton Dep. 515:6–518:8, 527:12–527:24, 529:3–529:16 (explaining that after she reported
discriminatory actions and concerns regarding her frozen salary, she was terminated and later
barred from returning to the office).
As a result, female associates who suspect unfair treatment in their compensation decisions
have little recourse and are discouraged from speaking up. Ex. A, Tolton Dep. 230:10–230:16

);
id. at 145:21–146:8

); Ex. C, Williams Dep. 189:18–189:25 (explaining she was discouraged from
challenging her compensation because it “would attract the wrong attention” from Partner Brogan).
Furthermore, Plaintiffs have identified that this compensation policy results in underpaying
women relative to men in jobs requiring substantially equal work. Jones Day represents that it pays
associates “at or above the upper level” of market compensation and a comparison of this
compensation to Plaintiffs’ indicates the Firm is paying them less than male associates. TAC ¶ 46;
Ex. A, Tolton Dep. 33:12–33:15, 81:8–81:11; Ex. B, Mazingo Dep 23:12–23:18, 47:9–47:14; Ex.
C, Williams Dep. 148:2–148:4, 51:18–52:4, 75:17–76:20; Ex. E, Henderson Dep. 113:13–113:18;

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Ex. F, Stahl Dep. 157:24–158:4. Despite Jones Day’s policy of pay secrecy, Plaintiffs also provide
evidence indicating they were underpaid relative to specific male comparators and that their
compensation is affected by a centralized and discriminatory review process. TAC ¶ 165; id. at. ¶
287; supra Section II.B; supra Section II.D. Indeed, Plaintiffs’ understanding regarding systemic
pay disparities is entirely consistent with their testimony on Firm-wide instances of gender
discrimination. See supra Section II.D.2. Courts in this Circuit routinely grant stage one
certification on similar or lesser showings.
In Galloway v. Chugach Government Services, Inc., this Court conditionally certified an
FLSA collective action and issued notice based on one declaration that spoke “only in general
terms.” 263 F. Supp. 3d at 156. While the single declaration was “short on detail” it was still
“minimally sufficient” to meet the “low bar of evidence” required at stage one. Id. Additionally,
in Blount v. U.S. Security Associates, the court conditionally certified an FLSA collective based
on plaintiffs’ complaint and declarations asserting simply that they had a common employer,
challenged the same compensation policy, and were all affected by the same compensation policy
in the same way. 945 F. Supp. 2d at 93–95.
Courts in other circuits also hold this level of evidence is sufficient to grant conditional
certification. In Earl v. Norfolk State University, the court found that the plaintiff seeking
certification of a collective of college professors had made the requisite modest factual showing
based on two affidavits presenting “only skeletal, conclusory allegations” and simple evidence of
an “evaluation policy” that “affects” compensation of all collective action members, regardless of
the faculty department. 2014 WL 6608769, at *6–7. The court held that members of the collective

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were similarly situated with respect to their claims even if all members of the collective did not
perform substantially equal work to one another. 9 Id. at *7–8.
Moreover, courts have routinely granted conditional certification even in cases where
defendants have attempted to introduce evidence illustrating that a centralized policy does not
operate as Plaintiffs allege. See, e.g., Chase, 374 F. Supp. 2d at 199–201 (granting conditional
certification despite significant discovery undermining the plaintiffs’ claims, in part because
permitting notice to be served “is consistent with the policy choice Congress made when it created

9

Plaintiffs here have presented evidence that they have performed substantially equal work to their
comparators, as explained in section II.C.4. See Crawford v. ExlService.com, LLC, 16 Civ 9137
(LAP), 2019 WL 5887214, at *1 (S.D.N.Y. Nov. 12, 2019) (finding the Plaintiff and Comparators
performed substantially equal work even though they “held different titles and oversaw business
lines generating different amounts of revenue”).
Courts in circuits across the country have continued to grant conditional certification to proposed
EPA collectives based on minimal showings. See Campeau v. NeuroScience, Inc., 86 F. Supp. 3d
912 (W.D. Wis. 2015); Smith v. Merck & Co., No. CV 132970MASLHG, 2016 WL 1690087
(D.N.J. Apr. 27, 2016); Barrett, 2015 WL 5155692, at *6; Kassman, 2014 WL 329884, at *4–5;
Chapman v. Fred’s Stores of Tenn., Inc., No. 8-1247, 2013 WL 1767791, *8-9, 16 (Mar. 15, 2013)
(certifying nationwide EPA collective of thousands of assistant managers at more than 650 stores
based on common job description, training manual, and pay provisions and employee declarations
“upon information and belief” that female managers were paid less than men); id. at *8–9, 11, 16
(granting conditional certification and noting that even though district managers made the initial
salary decision, “their decisions are subject to review at a higher level in many cases and are limited
by corporate policy and pay scales”); Moore, 2012 WL 2574742, at *11–12; Ebbert, 2007 WL
2295581, at *1–3 (allowing notice of EPA collective to 172 current employees plus former
employees upon allegations of four plaintiffs and finding that plaintiffs made a modest factual
showing that “as a result of a common pay scale, they were paid wages lower than the wages paid
to men for the performance of substantially equal work”); Rochlin v. Cincinnati Ins. Co., No. IP001898, 2003 WL 21852341, at *1, 14–16, 21 (S.D. Ind. July 8, 2003) (allowing notice of EPA
collective to current and former female employees working in multiple divisions and locations
nationwide based on “evidence tending to indicate that ‘at least some’ female employees were paid
less than their equally qualified male counterparts, and that those employees are similarly situated
to plaintiffs”); Rehwaldt v. Elec. Data Sys. Corp., No. 95-876, 1996 WL 947568, at *4–5, 9
(W.D.N.Y. Mar. 28, 1996) (allowing notice of EPA collective to all female sales employees in a
two-division business unit where plaintiff (i) alleged that she and other women in the proposed
collective were paid less than male employees doing essentially the same work; and (ii) “submitted
wage and bonus information relating to herself, one other female co-employee and one male coemployee”).
24

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the FLSA right of action”); Morris v. Lettire Const., Corp., 896 F. Supp. 2d 265, 271–72 (S.D.N.Y.
2012) (granting conditional certification and rejecting defendant’s attempt to introduce competing
declarations that purported to show plaintiffs’ allegations were unsupported); Spencer v. No.
Parking Today, Inc., No. 12 Civ 6323, 2013 WL 1040052, at *5 (S.D.N.Y. Mar. 15, 2013) (“The
first-step standard applies to certification applications up to the completion of discovery, regardless
of whether the parties have already engaged in substantial discovery practice.”); Kassman, 2014
WL 3298884, at *8 (granting conditional certification when Plaintiffs “presented evidence that job
responsibilities were generally the same across offices, compensation policies were firm-wide, and
ultimate compensation decisions were made by centralized leadership,” and noting that
“Defendant’s arguments [regarding how the pay policy operated] are more suited to a later, more
demanding stage of the proceedings”). These decisions are grounded in the clearly established
principle that issues relating to the merits and credibility of evidence are not appropriate for
consideration at this initial stage. Blount, 945 F. Supp. 2d at 94, 97; Moore, 2012 WL 2574742, at
*9.
Plaintiffs’ evidence, including Firm publications addressing the Firm’s compensation
policies and testimony from the Named Plaintiffs’ depositions describing their experiences relating
to those policies, demonstrate the “factual nexus” between “the manner in which the employer’s
alleged policy affected a plaintiff and the manner in which it affected other employees.” Galloway,
263 F. Supp. 3d at 156; see also Freeman, 187 F. Supp. 3d at 23. Evidence of “a compensation
policy that is applied across the proposed class, coupled with evidence that the policy results in
discriminatorily unequal pay, suggests the existence of other similarly situated plaintiffs who may
have EPA claims arising from the application of that policy.” Coates, 2015 WL 8477918, at *11.
Plaintiffs have presented more than sufficient evidence through their allegations and deposition

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testimony that there is a compensation policy that is applied to all female associates at Jones Day
and that the policy results in unequal pay based on gender, indicating that other female associates
at Jones Day are similarly situated to the plaintiffs and conditional certification is appropriate.
V.

RELIEF REQUESTED
In light of Plaintiffs’ preliminary evidence, the Court should conditionally certify the

collective and should authorize opt-in notice to all female associates who have been employed at
Jones Day since April 3, 2016, or three years prior to the filing of this litigation.10 Consistent with
the EPA’s remedial purposes, courts favor broad notice to employees who may be victims of
alleged unlawful practices. This avoids a multiplicity of duplicative actions and enables employees
to preserve their claims and provide evidence to show that they are, in fact, similarly situated to
Plaintiffs. In contrast, failure to provide notice will mean that employees’ EPA claims will
needlessly expire and that the judicial system may be burdened with overlapping suits.
Accordingly, the Court should conditionally certify the proposed collective and order the
parties to meet and confer on a proposed notice.

10

Courts routinely authorize notice three years prior to the filing of the Complaint, recognizing
the applicability of equitable tolling and the EPA’s three-year statute of limitations. See Meyer,
344 F. Supp. at 210 (“[B]ecause equitable tolling issues often arise for prospective plaintiffs, courts
frequently permit notice to be keyed to the three-year period prior to the filing of the complaint,
with the understanding that challenges to the timeliness of individual plaintiffs’ actions will be
entertained at a later date.” (internal quotation marks omitted)); Hunter v. Sprint Corp., 346 F.
Supp. 2d 113, 120 n.4 (D.D.C. 2004) (approving notice to be sent based on the filing of the
complaint); see also Castillo v. P&R Enters., Inc., 517 F. Supp. 2d 440, 449 (D.D.C. 2007) (noting
that it makes administrative sense to extend the period based on the date the complaint is filed,
rather than the date the notice is sent).
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Respectfully submitted,
Date: December 4, 2019

/s/ Kate Mueting
Kate Mueting (DC Bar No. 988177)
Paul Blankenstein (DC Bar No. 304931)
SANFORD HEISLER SHARP, LLP
700 Pennsylvania Avenue, SE, Ste. 300
Washington, D.C. 20003
Telephone: (202) 499-5206
Facsimile: (202) 499-5199
kmueting@sanfordheisler.com
Deborah K. Marcuse (D.C. Bar No. 995380)
SANFORD HEISLER SHARP, LLP
111 S. Calvert Street, Ste. 1950
Baltimore, MD 21202
Telephone: (410) 834-7415
Facsimile: (410) 834-7425
dmarcuse@sanfordheisler.com
David W. Sanford (D.C. Bar No. 457933)
Russell L. Kornblith*
SANFORD HEISLER SHARP, LLP
1350 Avenue of the Americas, 31st Floor
New York, NY 10019
Telephone: (646) 402-5650
Facsimile: (646) 402-5651
dsanford@sanfordheisler.com
rkornblith@sanfordheisler.com
*admitted pro hac vice
Attorneys for Plaintiffs, the Proposed Classes, and the
Proposed Collective

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