Mass. Appeals Court: State Agency Entitled to Mass. Equal Pay Act Affirmative Defense

Seyfarth Synopsis: In an appeal from the first decision to apply the affirmative defense of the Massachusetts Equal Pay Act (“MEPA”), the Massachusetts Appeals Court agreed with the Superior Court that a state agency established the MEPA self-audit affirmative defense.

On December 31, 2025, the Massachusetts Appeals Court affirmed an order of the Superior Court granting summary judgment to the Massachusetts Department of Public Health, Board of Registration in Nursing (“DPH”) on a MEPA claim. Plaintiff, a compliance officer, alleged she was hired into the wrong “step” in the hiring pay scale and thus was underpaid relative to two male colleagues. There was no dispute the Plaintiff was paid less than the males. The Appeals Court agreed that DPH demonstrated it was entitled to the MEPA affirmative defense because it conducted a good faith self-evaluation of its pay practices within three years of commencement of the lawsuit and made reasonable progress toward eliminating pay disparities.

MEPA provides a complete defense to liability for wage discrimination claims to an employer that (1) completed a self-evaluation of its pay practices that is “reasonable in detail and scope in light of the size of the employer” within the three years prior to commencement of the action; and (2) made “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. The Plaintiff contended that DPH’s self-evaluation was not completed within three years of the action and was not conducted in good faith, and that DPH did not demonstrate reasonable progress had been made towards eliminating impermissible pay disparities. The Appeals Court agreed with the Superior Court and rejected all of Plaintiff’s arguments.

3-Year Requirement

Plaintiff argued DPH’s analysis was not completed within three years before Plaintiff filed suit, relying on vague deposition testimony by a corporate witness who was designated as the Rule 30(b)(6) witness. The Appeals Court agreed that Plaintiff failed to point to any dispute of fact as to timing of the audit and instead relied on “conclusory suggestion(s),” noting the corporate witness was not a Rule 30(b)(6) witness for purposes of timing of the audit because the audit was not included as a topic in the Rule 30(b)(6) deposition notice. The Appeals Court also concluded that the testimony (which the Superior Court quoted as “I don’t have exact dates”) did not conflict with evidence in the record.

Good Faith

In a break from the Superior Court, the Appeals Court quoted from the Attorney General’s 2018 guidance about MEPA and its definition of “good faith,” but did not actually rely on that definition in any way, instead noting that “plaintiff’s conclusory denials” that there was not good faith “do not constitute a sufficient basis to avoid summary judgment.” The Appeals Court also relied on the fact that Plaintiff did not respond to DPH’s interrogatory asking Plaintiff to state every basis for Plaintiff’s contention that the self audit did not qualify for the affirmative defense, explaining that, as the non-moving party, Plaintiff had the burden to produce evidence sufficient to create a dispute of fact: “Thus, we are left with a record on which the plaintiff declined or otherwise failed to present evidence or provide a substantive response explaining how and why the MEPA affirmative defense did not apply to the present circumstances.”

Reasonable Progress

The Appeals Court also agreed that DPH made reasonable progress toward eliminating pay disparities, citing evidence that DPH made upward adjustments to the pay of the seven individuals who were identified in the audit for pay increases. The Appeals Court appears to have concluded there was record evidence that the adjustments were completed (without citing it), and again concluded that the testimony of the Rule 30(b)(6) witness that she was not sure whether the adjustments were actually made did not support Plaintiff’s position because the “MEPA affirmative defense and self-evaluation were not topics for which notice was provided under rule 30(b)(6)” and because the witness “merely described her lack of knowledge.” This was a departure from the Superior Court, which had concluded that DPH’s mere proposal of increases alone “constituted reasonable progress” within the meaning of MEPA and that Plaintiff failed her burden to demonstrate any genuine dispute of fact.

Recommendations for Employers Specific to MEPA Audits

• Conduct pay audits under the protection of the attorney-client privilege -- this is not implicated by the Woodward opinion but is always a best practice
• Document the completion of any pay equity audit
• Implement increases to address pay disparities shortly after completing an analysis -- preferably within six months, if feasible, depending on the circumstances (despite the Appeals Court’s affirmance, there is a real question of whether the record evidence showed that DPH made the adjustments)

Recommendations for Defendants in General

• As to Rule 30(b)(6) notices:
  • Before the deposition, object to the Rule 30(b)(6) notice in writing, in detail, explaining what the company will and will not prepare the Rule 30(b)(6) witness(es) to describe. Rule 30(b)(6) of the Federal Rules of Civil Procedure explicitly requires the parties to confer about topics: “Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” While the Massachusetts rule does not require conferral, lawyers representing companies should prepare written objections
  • During the Rule 30(b)(6) deposition, object to questions that are beyond the scope of the Rule 30(b)(6) topics and state on the record that the witness is testifying based on personal knowledge only
• As to improper affidavits submitted by an opponent in support of summary judgment:
  • File a motion to strike. The Appeals Court in Woodward relied on an affidavit that the Plaintiff failed to challenge, citing a 1976 opinion: “We note that the plaintiff did not move to strike the Cormier affidavit, and did not file any countervailing affidavit. … See generally Stetson v. Board of Selectmen of Carlisle, 369 Mass. 755, 763 n.12 (1976) (judge may consider even faulty affidavits if no motion to strike).” The Appeals Court appears to suggest that trial courts need not confirm affidavits are based on personal knowledge absent a motion to strike. See Mass. R. Civ. P. 56(e) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”)