{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:57-f-4th-426","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:57-f-4th-426)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-10-14","fingerprint":"ewai:us:88b5b2","proof":"sha256:e59d60592abd17eefc9065698c310560137551a5835da1bbddbfc9f8a9963b1d","jurisdiction":"us","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"us:57-f-4th-426","jurisdiction":"us","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"Front matter","paragraphs":["para_1","para_2","para_3","para_4","para_5","para_6","para_7","para_8","para_9","para_10","para_11","para_12","para_13","para_14","para_15","para_16","para_17","para_18","para_19","para_20","para_21","para_22","para_23","para_24","para_25","para_26","para_27","para_28","para_29","para_30","para_31","para_32","para_33","para_34","para_35","para_36","para_37","para_38","para_39","para_40","para_41","para_42","para_43","para_44","para_45","para_46","para_47","para_48","para_49","para_50","para_51","para_52","para_53","para_54","para_55","para_56","para_57","para_58","para_59","para_60","para_61","para_62","para_63","para_64","para_65","para_66","para_67","para_68","para_69","para_70","para_71","para_72","para_73","para_74","para_75","para_76","para_77","para_78","para_79","para_80","para_81","para_82","para_83","para_84","para_85","para_86","para_87","para_88","para_89","para_90","para_91","para_92","para_93","para_94","para_95","para_96","para_97","para_98","para_99","para_100","para_101","para_102","para_103","para_104","para_105","para_106","para_107","para_108","para_109","para_110","para_111","para_112","para_113","para_114","para_115","para_116","para_117","para_118","para_119","para_120","para_121","para_122","para_123","para_124","para_125","para_126","para_127","para_128","para_129","para_130","para_131","para_132","para_133","para_134","para_135","para_136","para_137","para_138","para_139","para_140","para_141","para_142","para_143","para_144","para_145","para_146","para_147","para_148","para_149","para_150","para_151","para_152","para_153","para_154","para_155","para_156","para_157","para_158","para_159","para_160","para_161","para_162","para_163","para_164","para_165","para_166","para_167","para_168","para_169","para_170","para_171","para_172","para_173","para_174","para_175","para_176","para_177","para_178","para_179","para_180","para_181","para_182","para_183","para_184","para_185","para_186","para_187","para_188","para_189","para_190","para_191","para_192","para_193","para_194","para_195","para_196","para_197","para_198","para_199","para_200","para_201","para_202","para_203","para_204","para_205","para_206","para_207","para_208","para_209","para_210","para_211","para_212","para_213","para_214","para_215","para_216","para_217","para_218","para_219","para_220","para_221","para_222"],"kind":"front_matter"}],"paragraphs":[{"text":"PUBLISHED","paragraph_id":"para_1"},{"text":"UNITED STATES COURT OF APPEALS","paragraph_id":"para_2"},{"text":"FOR THE FOURTH CIRCUIT","paragraph_id":"para_3"},{"text":"No. 21-1848","paragraph_id":"para_4"},{"text":"ELIZABETH POLAK, individually and on behalf of persons similarly situated,","paragraph_id":"para_5"},{"text":"Plaintiff - Appellant,","paragraph_id":"para_6"},{"text":"and","paragraph_id":"para_7"},{"text":"DEBRA TRENT; NICOLE TILLEY; LYNNE E. SMITH; CASSAUNDRA M.","paragraph_id":"para_8"},{"text":"PORTER; LEANN K. MORAN, individually and on behalf of persons similarly","paragraph_id":"para_9"},{"text":"situated; VALERIE MCGEE; SARAH T. LONG; LAUREN LINVILLE; SHERYL","paragraph_id":"para_10"},{"text":"A. KATTAN, individually and on behalf of persons similarly situated; ROBINA F.","paragraph_id":"para_11"},{"text":"JORDAN; REBECCA SUE HINES; KAREN HALEY-WINGATE; MARYBETH","paragraph_id":"para_12"},{"text":"M. GLASER; CASSANDRA FRYSINGER; HEATHER Z. EVANS; JUNE R.","paragraph_id":"para_13"},{"text":"ERWIN; LISA A. ELLIS; PAMELA DERK; D. LAURA CORL; ROSALIND A.","paragraph_id":"para_14"},{"text":"CHAPLIN; BRENDA L. BROWN; BETSY K. BOWLES; SHARON ALLEN; JOY","paragraph_id":"para_15"},{"text":"D. ABEL; ELIZABETH C. ABE, individually and on behalf of persons similarly","paragraph_id":"para_16"},{"text":"situated,","paragraph_id":"para_17"},{"text":"Plaintiffs,","paragraph_id":"para_18"},{"text":"v.","paragraph_id":"para_19"},{"text":"VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY,","paragraph_id":"para_20"},{"text":"Defendant - Appellee,","paragraph_id":"para_21"},{"text":"and","paragraph_id":"para_22"},{"text":"VIRGINIA DEPARTMENT OF HUMAN RESOURCE MANAGEMENT,","paragraph_id":"para_23"},{"text":"VDHRM/COMMONWEALTH OF VIRGINIA,","paragraph_id":"para_24"},{"text":"Party-in-Interest.","paragraph_id":"para_25"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 1 of 10","paragraph_id":"para_26"},{"text":"2","paragraph_id":"para_27"},{"text":"Appeal from the United States District Court for the Eastern District of Virginia, at","paragraph_id":"para_28","court_paragraph":2},{"text":"Richmond. John A. Gibney, Jr., Senior District Judge. (3:20-cv-00270-JAG)","paragraph_id":"para_29"},{"text":"Argued: October 26, 2022 Decided: January 17, 2023","paragraph_id":"para_30"},{"text":"Before NIEMEYER, DIAZ, and RUSHING, Circuit Judges.","paragraph_id":"para_31"},{"text":"Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Diaz","paragraph_id":"para_32"},{"text":"and Judge Rushing joined.","paragraph_id":"para_33"},{"text":"ARGUED: Tim Schulte, SHELLEY CUPP SCHULTE, P.C., Richmond, Virginia, for","paragraph_id":"para_34"},{"text":"Appellant. Brian Garth Muse, SANDS ANDERSON, PC, Richmond, Virginia, for","paragraph_id":"para_35"},{"text":"Appellee. ON BRIEF: Sydney E. Rab, SYDNEY E. RAB LAW FIRM, Richmond,","paragraph_id":"para_36"},{"text":"Virginia; Timothy E. Cupp, SHELLEY CUPP SCHULTE, P.C., Harrisonburg, Virginia,","paragraph_id":"para_37"},{"text":"for Appellant. Michelle S. Kallen, OFFICE OF THE ATTORNEY GENERAL OF","paragraph_id":"para_38"},{"text":"VIRGINIA, Richmond, Virginia; Wade T. Anderson, SANDS ANDERSON, PC,","paragraph_id":"para_39"},{"text":"Richmond, Virginia, for Appellee.","paragraph_id":"para_40"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 2 of 10","paragraph_id":"para_41"},{"text":"3","paragraph_id":"para_42"},{"text":"NIEMEYER, Circuit Judge:","paragraph_id":"para_43","court_paragraph":3},{"text":"Elizabeth Polak, a longtime employee of the Virginia Department of Environmental","paragraph_id":"para_44"},{"text":"Quality (“DEQ”), commenced this action against DEQ, claiming that it paid her less than","paragraph_id":"para_45"},{"text":"it paid a male employee with the same position doing equal work, in violation of the Equal","paragraph_id":"para_46"},{"text":"Pay Act.","paragraph_id":"para_47"},{"text":"The district court entered summary judgment against Polak, concluding that she","paragraph_id":"para_48"},{"text":"lacked evidence to demonstrate that any higher-paid male employee was doing work","paragraph_id":"para_49"},{"text":"“virtually identical” to the work she was doing. Indeed, the court explained that the record","paragraph_id":"para_50"},{"text":"showed that the male employee whom Polak had identified as a comparator was doing","paragraph_id":"para_51"},{"text":"different and more complex work than she was, such that she could not show that she was","paragraph_id":"para_52"},{"text":"paid less for equal work.","paragraph_id":"para_53"},{"text":"Based on a careful review of the summary judgment record, we agree with the","paragraph_id":"para_54"},{"text":"district court and affirm.","paragraph_id":"para_55"},{"text":"I","paragraph_id":"para_56"},{"text":"For ten years, Elizabeth Polak was employed by DEQ as a “coastal planner,”","paragraph_id":"para_57"},{"text":"executing federally funded Virginia programs for coastal management. The federal funds","paragraph_id":"para_58"},{"text":"were provided through specific grants that had to be applied for each year, and Polak’s role","paragraph_id":"para_59"},{"text":"involved managing some of those grants.","paragraph_id":"para_60"},{"text":"Polak was hired in May 2009 and served on a team of six members, one of whom","paragraph_id":"para_61"},{"text":"was the Program Manager, Laura McKay. Polak was hired at a starting salary of $43,000,","paragraph_id":"para_62"},{"text":"which was a substantial increase over her former job but was near the bottom of the salary","paragraph_id":"para_63"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 3 of 10","paragraph_id":"para_64"},{"text":"4","paragraph_id":"para_65"},{"text":"“pay band” for which her position qualified. Her pay, however, did increase over the years","paragraph_id":"para_66","court_paragraph":4},{"text":"such that she was paid $56,325 when she ended her employment with DEQ in 2019.","paragraph_id":"para_67"},{"text":"During her tenure at DEQ, Polak worked closely with Henry Moon, another coastal","paragraph_id":"para_68"},{"text":"planner on the team, who had been working at DEQ since 2002. Although Polak believed","paragraph_id":"para_69"},{"text":"that she and Moon had the same position and that they were doing essentially the same","paragraph_id":"para_70"},{"text":"work, Moon was paid more. At the time Polak left DEQ, Moon was paid $69,000 per year.","paragraph_id":"para_71"},{"text":"Polak and three other women commenced this action in April 2020 against DEQ,","paragraph_id":"para_72"},{"text":"alleging that it had been paying them, as well as other female employees, “lower wages","paragraph_id":"para_73"},{"text":"than those paid to their male colleagues for performing equal work,” in violation of the","paragraph_id":"para_74"},{"text":"Equal Pay Act of 1963, 29 U.S.C. §§ 206(d)(1) and 215(a)(2). Although Polak originally","paragraph_id":"para_75"},{"text":"brought her claim not only on her own behalf but also on behalf of a class of others similarly","paragraph_id":"para_76"},{"text":"situated, the class claims and other plaintiffs’ claims were dismissed without prejudice,","paragraph_id":"para_77"},{"text":"leaving only Polak’s individual claim in the case. Polak requested injunctive relief, as well","paragraph_id":"para_78"},{"text":"as damages consisting of back pay, liquidated damages, prejudgment interest, and a loss of","paragraph_id":"para_79"},{"text":"value under her retirement program.","paragraph_id":"para_80"},{"text":"After discovery, DEQ filed a motion for summary judgment, arguing that Polak, in","paragraph_id":"para_81"},{"text":"identifying Moon as a comparator, had “failed to identify an appropriate comparator","paragraph_id":"para_82"},{"text":"performing substantially equal work, as required under the Equal Pay Act,” and that, in any","paragraph_id":"para_83"},{"text":"event, “the salary differences between [Polak] and [Moon] [were] readily explained by","paragraph_id":"para_84"},{"text":"‘factors other than sex,’ specifically their respective prior pay histories.”","paragraph_id":"para_85"},{"text":"In an order dated July 7, 2021, the district court granted DEQ’s motion, relying","paragraph_id":"para_86"},{"text":"solely on the ground that Moon, the comparator Polak had identified, was not “a proper","paragraph_id":"para_87"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 4 of 10","paragraph_id":"para_88"},{"text":"5","paragraph_id":"para_89"},{"text":"comparator” for purposes of establishing a claim under the Equal Pay Act. The court","paragraph_id":"para_90","court_paragraph":5},{"text":"acknowledged that “Polak and Moon both worked as coastal planners at DEQ’s central","paragraph_id":"para_91"},{"text":"office” but concluded that “the undisputed evidence show[ed] that they [did] not ‘have","paragraph_id":"para_92"},{"text":"virtually identical jobs.’” The court explained that a plaintiff in Polak’s position could,","paragraph_id":"para_93"},{"text":"with sufficient evidence, “establish that she and a purported comparator had substantially","paragraph_id":"para_94"},{"text":"similar jobs even though they did different tasks on different grants for different","paragraph_id":"para_95"},{"text":"stakeholders,” but it noted that Polak had failed to “cite evidence to establish that [kind of]","paragraph_id":"para_96"},{"text":"similarity” and had instead relied on only “general assertions” “at a high level of","paragraph_id":"para_97"},{"text":"abstraction.” In short, the court concluded that “Polak [did not] establish a prima facie . . .","paragraph_id":"para_98"},{"text":"claim [under the Equal Pay Act] because” a jury could not find that Moon was an adequate","paragraph_id":"para_99"},{"text":"comparator.","paragraph_id":"para_100"},{"text":"From the district court’s judgment, Polak filed this appeal.","paragraph_id":"para_101"},{"text":"II","paragraph_id":"para_102"},{"text":"Polak contends essentially that she presented evidence — relying mostly on her own","paragraph_id":"para_103"},{"text":"declaration — that created a question of fact for a jury as to whether Henry Moon was an","paragraph_id":"para_104"},{"text":"adequate comparator for her claim under the Equal Pay Act.","paragraph_id":"para_105"},{"text":"The Equal Pay Act prohibits an employer from “discriminat[ing] . . . between","paragraph_id":"para_106"},{"text":"employees on the basis of sex by paying wages to employees . . . at a rate less than the rate","paragraph_id":"para_107"},{"text":"at which [it] pays wages to employees of the opposite sex . . . for equal work on jobs the","paragraph_id":"para_108"},{"text":"performance of which requires equal skill, effort, and responsibility, and which are","paragraph_id":"para_109"},{"text":"performed under similar working conditions.” 29 U.S.C. § 206(d)(1) (emphasis added).","paragraph_id":"para_110"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 5 of 10","paragraph_id":"para_111"},{"text":"6","paragraph_id":"para_112"},{"text":"An exception is provided, however, “where such payment is made pursuant to (i) a","paragraph_id":"para_113","court_paragraph":6},{"text":"seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or","paragraph_id":"para_114"},{"text":"quality of production; or (iv) a differential based on any other factor other than sex.” Id.","paragraph_id":"para_115"},{"text":"The Act, in short, “prohibits gender-based discrimination by employers resulting in","paragraph_id":"para_116"},{"text":"unequal pay for equal work.” EEOC v. Md. Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018).","paragraph_id":"para_117"},{"text":"To establish an Equal Pay Act claim, the plaintiff “must make an initial (i.e., prima","paragraph_id":"para_118"},{"text":"facie) showing of three elements: (1) the [employer] paid higher wages to an employee of","paragraph_id":"para_119"},{"text":"the opposite sex who (2) performed equal work on jobs requiring equal skill, effort, and","paragraph_id":"para_120"},{"text":"responsibility (3) under similar working conditions.” Spencer v. Va. State Univ., 919 F.3d","paragraph_id":"para_121"},{"text":"199, 203 (4th Cir. 2019). “This initial showing permits an inference that a pay disparity","paragraph_id":"para_122"},{"text":"was based on sex discrimination,” an “inference [that] stands even without the support of","paragraph_id":"para_123"},{"text":"any evidence of discriminatory intent.” Id. If a plaintiff establishes a prima facie case,","paragraph_id":"para_124"},{"text":"“the burdens of production and persuasion shift to the defendant-employer to show that the","paragraph_id":"para_125"},{"text":"wage differential was justified by one of the statutory defenses,” and if it fails to establish","paragraph_id":"para_126"},{"text":"such an affirmative defense, “the plaintiff will prevail.” Evans v. Int’l Paper Co., 936 F.3d","paragraph_id":"para_127"},{"text":"183, 196 n.6 (4th Cir. 2019).","paragraph_id":"para_128"},{"text":"This appeal focuses on the second element of a prima facie case — i.e., the","paragraph_id":"para_129"},{"text":"requirement that Polak establish that she and Moon, her proffered comparator, performed","paragraph_id":"para_130"},{"text":"“equal work” on jobs requiring “equal skill, effort, and responsibility.” We have stressed","paragraph_id":"para_131"},{"text":"with respect to that element that “[e]quality under the Act is a demanding threshold","paragraph_id":"para_132"},{"text":"requirement.” Spencer, 919 F.3d at 203. “Similarity of work is not enough”; instead, the","paragraph_id":"para_133"},{"text":"proffered “comparator [needs] to have performed work ‘virtually identical’ (or the apparent","paragraph_id":"para_134"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 6 of 10","paragraph_id":"para_135"},{"text":"7","paragraph_id":"para_136"},{"text":"synonym, ‘substantially equal’) to the plaintiff’s in skill, effort, and responsibility.” Id. at","paragraph_id":"para_137","court_paragraph":7},{"text":"203–04 (emphasis added); see also Evans, 936 F.3d at 196 (noting that the plaintiff and her","paragraph_id":"para_138"},{"text":"comparator “must have virtually identical jobs”); Wheatley v. Wicomico Cnty., 390 F.3d","paragraph_id":"para_139"},{"text":"328, 333 (4th Cir. 2004) (“In enacting the [Equal Pay Act], Congress chose the word","paragraph_id":"para_140"},{"text":"‘equal’ over the word ‘comparable’ in order to show that the jobs involved should be","paragraph_id":"para_141"},{"text":"virtually identical, that is very much alike or closely related to each other” (emphasis","paragraph_id":"para_142"},{"text":"added) (cleaned up)).","paragraph_id":"para_143"},{"text":"Thus, to establish equality of work, it is “[g]enerally . . . not enough to simply show","paragraph_id":"para_144"},{"text":"that the comparator[] hold[s] the same title and the same general responsibility as the","paragraph_id":"para_145"},{"text":"plaintiff.” Evans, 936 F.3d at 196. Stated otherwise, “a plaintiff may not rely on broad","paragraph_id":"para_146"},{"text":"generalizations at a high level of abstraction.” Spencer, 919 F.3d at 204; see also Wheatley,","paragraph_id":"para_147"},{"text":"390 F.3d at 332–33 (rejecting the plaintiffs’ argument that the managers of a county’s","paragraph_id":"para_148"},{"text":"eleven different departments all performed equal work and explaining that while, “at a high","paragraph_id":"para_149"},{"text":"level of abstraction[,] these positions all require[d] [department] directors to do the same","paragraph_id":"para_150"},{"text":"thing — supervise, coordinate, and organize” — “the [Act] demands more than a","paragraph_id":"para_151"},{"text":"comparison of job functions from a bird’s eye view”). And this requirement to rely on","paragraph_id":"para_152"},{"text":"“more than broad generalities” has particular resonance in an employment context “where","paragraph_id":"para_153"},{"text":"the work is an exercise in intellectual creativity that can be judged only according to","paragraph_id":"para_154"},{"text":"intricate, field-specific, and often subjective criteria.” Spencer, 919 F.3d at 205.","paragraph_id":"para_155"},{"text":"The record in this case shows that Moon and Polak were both coastal planners who","paragraph_id":"para_156"},{"text":"were members of the team supervised by McKay, the Program Manager, and that they","paragraph_id":"para_157"},{"text":"worked closely together and collaborated on issues of planning, grant progress, and","paragraph_id":"para_158"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 7 of 10","paragraph_id":"para_159"},{"text":"8","paragraph_id":"para_160"},{"text":"program performance. Thus, the general description of their work was similar. Even so,","paragraph_id":"para_161","court_paragraph":8},{"text":"the record also showed that they had many different responsibilities involving different","paragraph_id":"para_162"},{"text":"projects and grant recipients. In particular, Program Manager McKay testified that Moon","paragraph_id":"para_163"},{"text":"had expertise in coastal hazards, sea level rise, and shoreline erosion and that Polak did not","paragraph_id":"para_164"},{"text":"have the same “kind of background or experience” in those topics. Based on his expertise,","paragraph_id":"para_165"},{"text":"Moon was responsible for “facilitating implementation of the . . . Section 309 Coastal","paragraph_id":"para_166"},{"text":"Hazards Strategy, including annual grants and projects of special merit.” McKay testified","paragraph_id":"para_167"},{"text":"that Polak was “not qualified” to perform that responsibility. Another duty that Moon","paragraph_id":"para_168"},{"text":"performed that Polak did not was “assisting in developing and submitting new narrative","paragraph_id":"para_169"},{"text":"enforceable policies and managing grants to the William & Mary . . . Coastal Policy Center","paragraph_id":"para_170"},{"text":"to assist in this effort.” Moon was also solely responsible for “represent[ing] Virginia on","paragraph_id":"para_171"},{"text":"the [Mid-Atlantic Regional Council on the Ocean] Climate Change Action Team.” And","paragraph_id":"para_172"},{"text":"he similarly had “responsibilities for managing aspects of the [Coastal Zone Management]","paragraph_id":"para_173"},{"text":"program related to the National Estuarine Research Reserve System,” which Polak did not","paragraph_id":"para_174"},{"text":"do. Finally, Moon helped organize “a marsh vulnerability assessment and adaptation","paragraph_id":"para_175"},{"text":"strategy summit,” for which Polak had no responsibilities.","paragraph_id":"para_176"},{"text":"The record shows similarly that Polak carried out duties that Moon did not have.","paragraph_id":"para_177"},{"text":"She managed certain grants to the Virginia Department of Conservation and Recreation","paragraph_id":"para_178"},{"text":"and helped “implement the Section 309 Cumulative and Secondary Impacts strategies.”","paragraph_id":"para_179"},{"text":"She also organized a statewide Working Waterfronts Summit that “resulted in development","paragraph_id":"para_180"},{"text":"of the first Working Waterfronts Plan in Virginia.”","paragraph_id":"para_181"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 8 of 10","paragraph_id":"para_182"},{"text":"9","paragraph_id":"para_183"},{"text":"Based on her understanding of what Moon did, Polak stated in her declaration that","paragraph_id":"para_184","court_paragraph":9},{"text":"she and Moon filled “complementary” roles while having “equal” duties and “essentially","paragraph_id":"para_185"},{"text":"the same job.” But Polak could not have full comparative knowledge of both Moon’s job","paragraph_id":"para_186"},{"text":"and hers, as they each performed their work simultaneously in different contexts and on","paragraph_id":"para_187"},{"text":"distinct projects to which each were assigned. She did acknowledge, however, that McKay,","paragraph_id":"para_188"},{"text":"who was her “direct supervisor and boss at DEQ,” “controlled the work performed by Mr.","paragraph_id":"para_189"},{"text":"Moon and controlled the work that [Polak] performed.” Polak thus implicitly","paragraph_id":"para_190"},{"text":"acknowledged that McKay’s knowledge of the similarities and differences between the","paragraph_id":"para_191"},{"text":"jobs performed by Moon and Polak was unique. And McKay’s superior perspective","paragraph_id":"para_192"},{"text":"therefore was also critical to the resolution of Polak’s claim under the Equal Pay Act.","paragraph_id":"para_193"},{"text":"In her declaration, Program Manager McKay testified to the jobs and relevant","paragraph_id":"para_194"},{"text":"responsibilities of both Moon and Polak, noting that because of his background and","paragraph_id":"para_195"},{"text":"experience, Moon was doing different and more complex assignments than those given to","paragraph_id":"para_196"},{"text":"Polak. McKay stated, “Moon had more experience than Polak with respect to coastal","paragraph_id":"para_197"},{"text":"planning policymaking and the updating of enforceable policies of the [Coastal Zone","paragraph_id":"para_198"},{"text":"Management] [p]rogram. . . . Because he had more experience, Moon worked on more","paragraph_id":"para_199"},{"text":"challenging issues related to the [Coastal Zone Management] program than Polak and","paragraph_id":"para_200"},{"text":"handled more difficult and complex grant application assignments.” (Emphasis added).","paragraph_id":"para_201"},{"text":"McKay also listed numerous tasks that Moon but not Polak was assigned to perform.","paragraph_id":"para_202"},{"text":"Because Polak did not have the same vantage point as McKay, Polak could not","paragraph_id":"para_203"},{"text":"assess the differences in Moon’s work to which McKay testified, nor could she assess the","paragraph_id":"para_204"},{"text":"relative complexity of his work. Thus, she did not — indeed, could not — rebut McKay’s","paragraph_id":"para_205"},{"text":"USCA4 Appeal: 21-1848 Doc: 39 Filed: 01/17/2023 Pg: 9 of 10","paragraph_id":"para_206"},{"text":"10","paragraph_id":"para_207"},{"text":"testimony. Rather, Polak relied on her own more limited perspective, giving her opinion","paragraph_id":"para_208","court_paragraph":10},{"text":"that the roles she and Moon filled “were complementary and [their] duties equal” and that","paragraph_id":"para_209"},{"text":"she and Moon had “essentially the same job.” But even with that very general conclusion,","paragraph_id":"para_210"},{"text":"she could not dispute McKay’s testimony that Moon not only did different work but he also","paragraph_id":"para_211"},{"text":"“worked on more challenging issues” and “handled more difficult and complex grant","paragraph_id":"para_212"},{"text":"application assignments” than did Polak.","paragraph_id":"para_213"},{"text":"Based on that record, the district court did not err in concluding that Polak could not","paragraph_id":"para_214"},{"text":"establish that she and Moon performed “equal work.” To be sure, Polak and Moon","paragraph_id":"para_215"},{"text":"performed similar work. But the differences in the actual work performed and the level of","paragraph_id":"para_216"},{"text":"complexity involved were significant enough that their work cannot be fairly described as","paragraph_id":"para_217"},{"text":"“substantially equal” or “virtually identical,” as required to establish a claim under the","paragraph_id":"para_218"},{"text":"Equal Pay Act. 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