TOLTON et al v. JONES DAY

Filing 189

MEMORANDUM OPINION AND ORDER granting Defendant's motion for summary judgment, Dkt. 129 . Plaintiff is hereby ORDERED to file her motion for reconsideration, if any, on or before May 28, 2021. Signed by Judge Randolph D. Moss on 03/31/2021. (lcrdm1) Modified on 3/31/2021 to change document type to opinion. (kt).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KATRINA HENDERSON,
Plaintiff,
Civil Action No. 19-945 (RDM)
v.
JONES DAY,
Defendant.

MEMORANDUM OPINION AND ORDER
The scope of the case now before the Court has narrowed substantially over the past
several months. In its earlier form, the case included six plaintiffs and twenty-three counts;
sought treatment as a class and collective action; and included an array of disparate allegations
spanning a 135-page complaint. Dkt. 41 (3d Am. Compl.). Last May, the Court issued a
decision dismissing some of those claims, while sustaining others. See Tolton v. Jones Day, No.
19-cv-945, 2020 WL 2542129 (D.D.C. May 19, 2020) (“Tolton I”). Of particular relevance here,
the Court dismissed the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), claims of three of the six
named plaintiffs, but concluded that three of the plaintiffs, including Katrina Henderson, had
adequately pled EPA claims. Id. at *30–31. Then, in December 2020, the plaintiffs dropped
their class and collective action claims. Dkt. 181. And earlier this month, all of the plaintiffs
except Henderson voluntarily dismissed their claims against Jones Day with prejudice, Dkt. 186,
leaving only four claims that Henderson now asserts solely in her individual capacity, Dkt. 187.
With this narrowing of the case, the pending motion now involves the only remaining
plaintiff, and it addresses only one claim: Henderson’s claim under the Equal Pay Act. In that
claim, Henderson alleges that she was paid at “a lower rate . . . than male colleagues in jobs

requiring the performance of substantially equal work, even though [she] . . . performed . . .
similar duties requiring the same skill, effort, and responsibility as [her] male counterparts.”
Dkt. 41 at 102 (3d Am. Compl. ¶ 405) (Count IV). In seeking dismissal of that claim, Jones Day
contends that no reasonable jury could find in Henderson’s favor because she “performed no
work—literally, none—during the period within the statute of limitations.” Dkt. 129 at 7. As
Jones Day sees it, Henderson was “kept on the payroll merely as a courtesy while she looked for
other jobs.” Id. Thus, according to Jones Day, Henderson could not possibly have been paid
less than her male counterparts for performing “equal work.” Id.
Unsurprisingly, Henderson does not agree. In her view, during the period at issue, she
was tasked by Jones Day with finding a new job, and, thus, although she billed no time to client
work, she nonetheless performed “work” within the meaning of the Equal Pay Act. Dkt. 164 at
50–51. She further argues that she was paid less than male comparators and, finally, that she
should at least be afforded the opportunity to take additional discovery in an effort to show that
she was engaged in “work” and was paid less than similarly situated male associates. Id. at 52–
53.
The Court must therefore decide whether a reasonable jury could find that Henderson
was engaged in “work” for her employer during those hours that she searched for a new job.
Although most lawyers know what it means to work long hours, the question posed here is an
unusual one. But, as explained below, the Court concludes that no reasonable jury could find
that Henderson was engaged in “work” for which she was denied equal pay. The Court will,
accordingly, GRANT Jones Day’s motion for summary judgment with respect to Henderson’s
Equal Pay Act claim.

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I. BACKGROUND
A.

Factual Background
Only a handful of facts bear on Henderson’s Equal Pay Act claim, and for the purpose of

evaluating Jones Day’s motion for summary judgment, the Court construes those facts in the
light most favorable to Henderson. Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir.
2006).
Katrina Henderson graduated from New York University School of Law in 2013 and
joined Jones Day’s New York office in October 2013. Dkt. 41 at 73–74 (3d Am. Compl.
¶¶ 270–71). Over time, however, “Henderson . . . found herself less and less sought out by Jones
Day partners,” and she “had difficulty obtaining billable work.” Id. at 81 (3d Am. Compl.
¶ 297). In December 2015, she was invited to a meeting at which she was “informed . . . that
[Jones Day] was terminating her employment.” Id. at 81–82 (3d Am. Compl. ¶ 301); Dkt. 164-2
at 1 (Response to SUMF ¶ 1). “Initially, . . . Henderson was told that Jones Day would continue
to employ her for ‘plenty of time’ to find new employment,” but “[i]n February 2016, the
[f]irm[] . . . told her [that] she would have just another 2 to 4 weeks to find a new position.” Dkt.
41 at 82 (3d Am. Compl. ¶ 303); Dkt. 164-2 at 1 (Response to SUMF ¶ 2). After “Henderson
complained about her situation to . . . Jones Day’s Human Resources department,” however, the
firm agreed to give her “several additional months to search for a new job.” Dkt. 41 at 82 (3d
Am. Compl. ¶ 304).
Jones Day continued to pay Henderson’s salary until “the end of June 2016,” when she
“was placed on unpaid leave.” Dkt. 164-2 at 1–2 (Response to SUMF ¶ 3); Dkt. 164-9 at 7 (Ex.
B3) (confirming that Henderson was paid through June 30, 2016). She then continued her
formal affiliation with the firm, albeit without pay, until July 15, 2016, when her employment

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came to an end. Dkt. 164-2 at 2 (Response to SUMF ¶¶ 3–4). According to Henderson, she
“was told [that] it would be beneficial for both Jones Day and for her to extend her [formal]
employment with Jones Day until July 15 when her process with a prospective employer would
be complete.” Id. at 2 (Response to SUMF ¶ 3). All agree that Henderson recorded zero billable
hours and zero pro bono hours of work in 2016. Id. (Response to SUMF ¶ 5). Henderson notes,
however, that she recorded 910 firm hours in 2016, id., representing the time that she spent
searching for a new job, Dkt 164 at 50; Dkt. 129-1 at 1 (SUMF ¶ 5); Dkt. 146-38 at 2 (Chase
Decl.).
Henderson was not alone in receiving pay for a period of time while looking for new
employment. In general, when Jones Day asks an associate to leave the firm, it provides the
associate with time to find another job and continues to pay the associate’s salary for a period of
time. Dkt. 169-9 at 10 (Suppl. Chase Decl.). According to Jones Day, it provides this transition
period “to make sure that families can pay their mortgages” and to avoid “forc[ing] people out
the door.” Id. In Henderson’s view, in contrast, paying outgoing associates to look for “work
serves the firm’s interests by promoting client development” (if the firm can place an outgoing
associate at a client) and also bolsters “associate recruitment” (presumably by generating good
will and by facilitating appealing exit strategies to those who do not make partner). Dkt. 169-1
at 53 (SUMF Reply ¶ 245).
B.

Procedural Background
Henderson joined this action on June 24, 2019, alleging a variety of claims related to

workplace discrimination. Dkt. 27. Shortly after filing its answer, Dkt. 36, Jones Day moved for
partial judgment on the pleadings, Dkt. 37, and the Court granted that motion in part and denied
it in part. Tolton I, 2020 WL 2542129, at *1. Henderson’s EPA claim, along with the EPA

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claims of two other plaintiffs, survived Jones Day’s motion. Id. at *30. As the Court explained,
Henderson had adequately alleged that she was paid less than male associates performing
substantially equal work, and she identified four male associates who she claimed either billed
fewer or similar hours or who performed work that was “interchangeable” with the work she
performed. Id. She further alleged that, although she did not receive a raise after her first year,
two male comparators did. Id. Finally, the Court observed that although at least one of these
male associates was “a less than perfect comparator,” Henderson had “alleged enough to state an
EPA claim.” Id.
Shortly after issuing that decision, the Court authorized “nationwide discovery of
associate compensation and numerical evaluation data for the period from January 1, 2012 to
December 31, 2018,” with all fact discovery to be completed by June 11, 2021. Minute Order
(July 9, 2020); see also Minute Entry (June 10, 2020). Around that same time, Plaintiffs filed an
amended motion to conditionally certify an EPA collective action, Dkt. 118; Dkt. 145, and on
July 15, 2020, Jones Day moved for summary judgment with respect to the EPA claims asserted
by the three EPA plaintiffs remaining after the Court’s May 19, 2020 decision. Dkt. 129. Jones
Day opposed Plaintiffs’ motion for certification, Dkt. 146, and Plaintiffs, in turn, opposed Jones
Day’s motion for summary judgment, Dkt. 164. Although discovery has been proceeding for
several months since the parties filed their briefs on this matter, neither party has moved to
supplement those materials with further information disclosed in the discovery process.
While Jones Day’s motion for summary judgment on Plaintiffs’ EPA claim has been
pending, the scope of the case and the issues presented by that motion have narrowed
considerably. First, on December 14, 2020, “[a]fter analyzing the nationwide evaluation and
compensation data Jones Day produced” in discovery, Plaintiffs withdrew their disparate impact

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claims, their class and collective action allegations, and their motion for conditional certification
of an EPA collective action. Dkt. 181 at 1. In light of that narrowing of the case, the Court
amended the discovery schedule, moving the close of discovery up to April 30, 2021. Minute
Order (Dec. 15, 2020). Second, on March 11, 2021, all plaintiffs other than Henderson
voluntarily dismissed their remaining claims. Dkt. 186. Accordingly, the only motion pending
before the Court is Jones Day’s motion for summary judgment as to Henderson’s individual EPA
claim.
II. LEGAL STANDARD
A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if it
can “show[] that there is no genuine dispute as to any material fact and [that it] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment
“bears the initial responsibility” of “identifying those portions” of the record that “demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A fact is “material” if it could affect the substantive outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott
v. Harris, 550 U.S. 372, 380 (2007). The Court must view the evidence in the light most
favorable to the nonmoving party and must draw all reasonable inferences in that party’s favor.
See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
III. ANALYSIS
Jones Days argues, and Henderson does not dispute, that the statute of limitations
governing her EPA claim reaches back, at most, to June 24, 2016. Dkt. 129 at 18; see also 29
U.S.C. § 255(a); Potts v. Howard Univ. Hosp., 598 F. Supp. 2d 36, 39 n.3 (D.D.C. 2009). As a

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result, the sole question before the Court is whether Henderson received unequal pay for
performing “equal work” as her male comparators during the final week of June—or, perhaps,
during that week and the first two weeks of July, when Henderson was on “unpaid leave,” Dkt.
164-2 at 1–2 (Response to SUMF ¶ 3). In Jones Day’s view, the answer to this question is easy:
“because Henderson did no work—literally no work at all—in 2016,” and because she was
merely kept “on the payroll as a courtesy while she searched for a new job,” she cannot possibly
“establish that she was paid less than a man for ‘equal work.’” Dkt. 129 at 18 (emphasis
omitted). In the firm’s view, “no further discovery could change these facts or alter this legal
conclusion,” and thus Jones Day is entitled to summary judgment on Henderson’s EPA claim.
Id. at 19.
Henderson offers a three-pronged response. First, she contends that her search for
employment constituted “work” for Jones Day and that the firm “has not carried its burden,
under the [EPA’s] affirmative defenses, of proving that it paid . . . Henderson less than male
comparators because of her low billable hours—or even because she devoted her working time to
searching for other employment as instructed by the firm.” Dkt. 164 at 50. Second, Henderson
maintains that, even if it is her burden to show that she performed “equal work” to a male
comparator, she has identified “numerous male associates [who] billed similar amounts of time
. . . in 2016 and yet were compensated at a higher rate.” Id. at 52. Finally, Henderson maintains
that, at a minimum, she should be allowed to take additional discovery to show that Jones Day
considered her job search to be “work” performed for the firm’s benefit and to uncover
“potentially hundreds of comparators” who were similarly instructed to conduct job searches by
the firm and were paid more than Henderson. Id.

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In addressing this dispute, the Court starts, as it must, with the text of the EPA. See
Sebelius v. Cloer, 569 U.S. 369, 376 (2013). The EPA provides in relevant part that:
No employer . . . shall discriminate . . . between employees on the basis of sex by
paying wages to employees . . . 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). In keeping with this language, “to make out a case under the [EPA], the
[plaintiff] must show that [her] employer pays different wages to employees of opposite sexes
‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions.’” Corning Glass Works v. Brennan,
417 U.S. 188, 195 (1974) (quoting 29 U.S.C. § 206(d)(1)). “Once [the] plaintiff[] meet[s] [her]
burden, the burden then shifts to defendants to show that the pay differential was justified under
one of the exceptions to the Act.” Thompson v. Sawyer, 678 F.2d 257, 271 (D.C. Cir. 1982).
Those exceptions cover pay differentials that are justified by “(i) a seniority system; (ii) a merit
system; (iii) a system which measures earnings by quantity or quality of production; or (iv) . . .
any other factor other than sex.” 29 U.S.C. § 206(d)(1).
Neither party identifies any authority defining the term “work” for purposes of the EPA,
but the parties appear to agree that “work” means activity that is “‘controlled or required by the
employer and pursued necessarily and primarily for the benefit of the employer.’” Dkt. 169 at 10
(quoting Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 31 (2014) (quoting Tenn. Coal, Iron
& R.R. v. Muscoda Loc. No. 123, 321 U.S. 590, 598 (1944))); see also Dkt. 164 at 51 (“[W]ork is
that which is undertaken predomina[ntly] for the benefit of the employer.”) (internal quotation
marks and citations omitted). That reading of the statute, moreover, makes sense. The EPA was
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enacted in 1963 as an amendment to the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C.
§ 201 et seq. See Corning Glass, 417 U.S. at 190. The federal courts, in turn, have long
construed the term “work,” as used in the FLSA, to refer to “physical or mental exertion
(whether burdensome or not) controlled or required by the employer and pursued necessarily and
primarily for the benefit of the employer and [its] business.” Tenn. Coal, 321 U.S. at 598; see
also Integrity Staffing Sols., 574 U.S. at 31; Singh v. City of New York, 524 F.3d 361, 367 (2d
Cir. 2008). Absent good reason, moreover, courts “presume that the same term has the same
meaning when it occurs here and there in a single statute,” Env’t Def. v. Duke Energy Corp., 549
U.S. 561, 574 (2007), and, here, neither party suggests that the term “work” should have a
different meaning for purposes of the EPA than for purposes of other provisions of the FLSA.
To the contrary, the Supreme Court announced its interpretation of the term “work” years before
Congress used that same term in adding the EPA to the FLSA, and Congress is presumed to have
been aware of that interpretation of the statute, see Lorillard v. Pons, 434 U.S. 575, 580 (1978)
(presuming that when Congress enacted the Age Discrimination in Employment Act of 1967, it
was aware of the preexisting administrative and judicial interpretations of the FLSA).
The construction of the word “work” that the Supreme Court adopted in 1944 does not
mean that exertion is invariably required. “[A]n employer, if [it] chooses, may hire a [person] to
do nothing.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); see also Dinkel v. MedStar
Health Inc., No. 11-cv-998, 2015 WL 5168006, at *4 (D.D.C. Sept. 1, 2015). Nor does the
primary-benefit test provide a bright-line standard that easily resolves every case. Rather,
“[w]hether time is spent predominantly for the employer’s benefit or for the employee’s is a
question dependent upon all the circumstances of the case.” Wantock, 323 U.S. at 133; see also
Skidmore v. Swift & Co., 323 U.S. 134, 136–37 (1944); Dinkel, 2015 WL 5168006, at *4.

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As an initial matter, the parties disagree over whether Henderson’s lack of any client
hours is relevant to whether she can establish a prima facie case or, instead, whether Jones Day
has met its burden of establishing an affirmative defense seeking to justify a pay “differential
based on any . . . factor other than sex,” 29 U.S.C. § 206(d)(1). See Dkt. 164 at 49–50; Dkt. 169
at 11; see also Dkt. 162 at 5; Dkt. 166 at 6. In the Court’s view, Jones Day has the better of the
arguments. Henderson claims that the question whether a pay differential is justified based on a
disparity in the number of hours worked constitutes an affirmative defense, for which the
employer carries the burden of proof. That might be right, but it is not the argument that Jones
Day makes with respect to Henderson. The firm does not simply argue that, if she was paid less
than others, there was good reason for that disparity. Rather, Jones Day argues that Henderson
cannot carry her burden of showing that she was paid less for “equal work,” because she engaged
in no work at all.
The Court agrees that no reasonable jury could find that Henderson engaged in any
“work” within the meaning of the EPA during the final week of June 2016 (or the first two
weeks of July, when she was on unpaid leave). As Jones Day persuasively argues, the only
activity that Henderson engaged in during this period was the search for a new job, and that
activity was not “necessarily and primarily for the benefit” of Jones Day. Tenn. Coal, 321 U.S.
at 598. To the contrary, even if that effort indirectly benefited Jones Day in some way, there is
no escaping the fact that Henderson was the primary beneficiary of her job search.
None of the evidence that Henderson proffers supports her contention that Jones Day was
the necessary and primary beneficiary of Henderson’s search for a new job. She first cites the
deposition of Nilab Tolton, one of the former plaintiffs in this case, in which Tolton explains that
she was told by two Jones Day partners “that they wanted to place [her] at a client because it

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would be mutually beneficial” to do so and that Tolton should keep the firm informed about her
job search, so partners with client relationship could “facilitate . . . recommendation[s] for” her.
Dkt. 164-10 at 12–13 (Ex. B4); Dkt. 164 at 50. Tolton further testified that the partners’ offer
“to help facilitate [her] placement in-house at a client was appealing to [her].” Dkt. 164-10 at 13
(Ex. B4). Henderson herself testified that “Jones Day didn’t like to advertise when it was letting
people go or firing associates” and that, as result, it was “beneficial for the firm and
[Henderson]” to allow her to stay on (even in an unpaid capacity) after June 30, 2016, since she
was still in the process of finalizing her future employment. Dkt. 164-9 at 10–11 (Ex. B3); Dkt.
164 at 51. And, Saira Draper, another former plaintiff, testified that a firm partner asked if she
would like to meet the general counsel of a firm client for “informational” purposes. Dkt. 164-8
at 3 (Ex. B2); Dkt. 164 at 51. None of that, however, is inconsistent with the uncontroverted
testimony of Traci Lovitt, a Jones Day partner responsible for the associate evaluation process,
Dkt. 129-1 at 10 (SUMF ¶ 131), explaining that the firm provides outgoing associates with a
transition period to look for a new job “because [the firm does not] typically force people out the
door” and “like[s] to make sure that families can pay their mortgages,” Dkt. 169-9 at 10 (Suppl.
Chase Decl.). And none of it supports the implausible contention that Jones Day is the primary
beneficiary of the job searches conducted by associates who have been asked to leave the firm.
The undisputed facts surrounding Henderson’s departure foreclose any reasonable
argument that Jones Day was the primary beneficiary of Henderson’s job search during the last
days of June (and arguably the first two weeks of July). It is undisputed, for example, that Jones
Day told Henderson in February 2016 that “she would have just another 2 to 4 weeks to find a
new position” and, only after “Henderson complained about her situation to . . . Jones Day’s
Human Resources department,” did the firm give her “several additional months to search for a

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new job.” Dkt. 41 at 82 (3d Am. Compl. ¶¶ 303–04). This fits Jones Day’s description that the
“additional time to find a new job was given at Henderson’s insistence and for Henderson’s
benefit.” Dkt. 169 at 10 (emphasis omitted). If Jones Day, rather than Henderson, “primarily . . .
benefit[ed]” from her subsidized job search, it is difficult to understand why the firm planned to
cut that process short, and why Henderson “complained” to Human Resources. Integrity Staffing
Sols., 574 U.S. at 33 (internal quotation marks omitted); see also Dkt. 169 at 10. Thus, even if
the firm might have benefited from a short transition period, Henderson offers no plausible
theory for how—in light of her own allegations—Jones Day remained the primary beneficiary of
her paid job search almost six months after the firm “unceremoniously informed [her] that [it]
was terminating her employment,” Dkt. 41 at 82 (3d Am. Compl. ¶ 301).
Although this conclusion provides ample basis to grant Jones Day’s motion, the Court is
also persuaded that, even if Henderson was engaged in “work” subject to the EPA, her claim
would fail. In this respect, it makes little difference whether the question is framed—as Jones
Day suggests—in terms of whether Henderson has carried her burden of showing that she
engaged in “equal work on jobs the performance of which requires equal skill, effort, and
responsibility,” 29 U.S.C. § 206(d)(1), or—as Henderson suggestions—in terms of whether
Jones Day has carried its burden of showing that Henderson was paid less than other associates
based on “a system which measures earnings by quantity or quality of production” or “on any
other factor other than sex,” id. To start, when Henderson was told at the end of December 2015
that the firm was terminating her employment, her job indisputably changed. She was no longer
employed to provide legal services to the firm’s clients, and thus she did not hold a job “the

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performance of which require[d] equal skill, effort, and responsibility” as most other firm
associates.1
Anticipating that the Court might have doubts as to her comparability to associates
engaged in client work, Henderson contends that “numerous male associates billed similar
amounts of time to . . . [her] in 2016 [that is, no client hours] and yet were compensated at a
higher rate.” Dkt. 164 at 52. The “numerous” comparators to whom Henderson refers seem to
be four lawyers among the hundreds surveyed in discovery. Dkt. 164-40 at 2 (Ex. D5). As Jones
Day observes, three of the comparators were six-to-nine years senior to Henderson, and all left
the firm by mid-January 2016. Id.; Dkt. 169 at 11–12. The fourth “did not record hours [during
2016] because he was on secondment to a client” until he left the firm in mid-2016. Dkt. 169 at
11; Dkt. 169-2 at 2–3 (Suppl. Bounds Decl. ¶ 5.D). These facts render the male associates’
situations so dissimilar from Henderson’s that they cannot serve as plausible comparators.
In a final effort to avoid summary judgment, Henderson argues that Jones Day’s motion
is premature and that she needs more discovery regarding (1) whether Jones Day was the
primary beneficiary of her job search, and (2) potential comparators. Dkt. 164 at 52. She claims
that depositions with the decisionmakers who set Henderson’s pay, together with further
discovery related to “any associates terminated, disciplined, or otherwise discussed for failing to
search for outside employment” could prove that her job search amounted to work for the firm.
Id. But Plaintiffs did take some discovery before responding to Jones Day’s motion, and the

Because of Jones Day’s prospective salary-setting, one might argue that the relevant time
period for assessing Henderson’s performance was the previous year leading up to July 2015, the
timeframe that served as the basis for setting her salary during the challenged period. See Dkt.
148 at 8 (describing this system); Dkt. 129 at 11, 13 (listing July 1 as the date salary changes
take effect). But the Court does not consider this argument because neither party makes it. And,
in any event, Henderson fails to identify any evidence suggesting that she was paid in 2016 for
work performed in 2015.
1

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Court is hard pressed to understand how the additional discovery Henderson seeks could rescue
her EPA claim. For one thing, Henderson’s pay was set long before the firm agreed, at
Henderson’s request, to extend her transition period from February or March to June 2016.
Compare Dkt. 129 at 11, and Dkt. 129-2 at 3 (Bounds Decl. ¶ 8), with Dkt. 41 (3d Am. Compl.
¶¶ 303–04). Understanding how her pay was set would have no bearing on whether Henderson’s
job search primarily benefited the firm or Henderson. Moreover, on the facts of this case—as
Henderson herself frames them—it is implausible that any amount of discovery would show that
Jones Day was the primary beneficiary of Henderson’s job search. And, with respect to
comparators, Henderson included in her opposition evidence that she obtained from Jones Day in
discovery, and there is no reason to believe that further discovery would call Jones Day’s reply
into question; indeed, Jones Day’s reply relies primarily on the chart that Henderson herself
proffered. In sum, further discovery of the sort described by Henderson cannot rescue her EPA
claim, because there is no reason to believe that it would create “a genuine issue of material
fact.” Celotex Corp., 477 U.S. at 323.
Under Rule 56(d), however, the Court has some flexibility in dealing with a request for
discovery, and, in particular, the Court may “issue any . . . appropriate order.” Fed. R. Civ. P.
56(d). Here, Henderson has now had many months to conduct discovery, and Jones Day has
provided copious amounts of discovery to Plaintiffs, and less than two months of discovery
remain. Dkt. 188. Yet, despite the lengthy period that Henderson has had to conduct discovery,
she has not sought to supplement her opposition with any additional evidence. Under these
circumstances, it seems highly unlikely that she found a smoking gun or, indeed, any evidence
material to this motion in the discovery she has conducted. But, out of an abundance of caution
and exercising the Court’s discretion under Rule 56(d), the Court will entertain a motion for

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reconsideration of this decision on or before May 28, 2021,2 if Henderson can produce evidence
(1) that was previously unavailable to her, and (2) that shows that a genuine dispute exists with
respect to any of the factual premises material to this decision. The Court cautions her, however,
that this is not a free pass at relitigating issues already decided but, rather, is intended to guard
against the remote possibility that she previously discovered a dispositive fact, which for some
reason she has felt constrained not to bring to the Court’s attention, or that she is on the verge of
discovering such a dispositive fact.
*

*

*

For these reasons, the Court concludes that Jones Day has carried its burden of showing
that no reasonable jury could find in Henderson’s favor on her EPA claim. Accordingly, the
Court will grant summary judgment in favor of Jones Day on Count IV of Henderson’s
complaint.
CONCLUSION
The Court hereby GRANTS Jones Day’s motion for summary judgment as to
Henderson’s EPA claim, Dkt. 129.
SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: March 31, 2021

2

Earlier this month, the Court extended the close of discovery until May 28, 2021.
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