Page:Lindsley v. TRT Holdings (20-10263) (2021) Opinion.pdf/8

 forth a non-discriminatory reason for that pay disparity. Accordingly, we reverse and remand to give Omni the opportunity to do so.

Second, Omni agrees that Lindsley established a prima facie case of pay discrimination with regard to Daniel Cornelius. In light of the above analysis, we think it best for the district court to give a fresh look at whether Omni has proffered sufficient non-discriminatory reasons for the pay disparity, such that Omni is entitled to summary judgment.

Finally, it is undisputed that Lindsley was paid less than other male food and beverage directors at other Omni locations. As we shall explain, Lindsley may not use these pay comparators from other Omni locations to establish a prima facie case under the Equal Pay Act. But she may do so under both Title VII and the Texas Labor Code.

Under the Equal Pay Act, a plaintiff must show that the pay violation occurred within a single “establishment.” 29 U.S.C. § 206(d)(1). The governing regulations explain that the term “establishment” “refers to a distinct physical place of business rather than to an entire business or ‘enterprise’ which may include several separate places of business. Accordingly, each physically separate place of business is ordinarily considered a separate establishment.” 29 C.F.R. § 1620.9(a). Only in “unusual circumstances may … two or more distinct physical portions of a business enterprise [be] treated as a single establishment.” Id. § 1620.9(b). See also id. (“For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and performed under similar working conditions.”).

This case does not present the “unusual circumstances” necessary under the Equal Pay Act regulations to warrant a departure from the default rule that “each physically separate place of business is ordinarily considered