Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 47 other things, that she was terminated because she asked why a male employee was authorized to work overtime while she was not. 393 The court held that plaintiff’s request qualified as protected activity and that her termination qualified as an adverse action. 394 But the court held that the plaintiff had failed to establish a causal connection between the two. Although the plaintiff had complained about unequal opportunity to work overtime to her manager, she had not produced evidence that her manager had communicated that complaint to her supervisor, who was the decision-maker regarding her termination, and in fact, the supervisor and manager had testified to the contrary. 395 The court held that this was “fatal to her attempted prima facie retaliation claim.” 396 Timing is often critical to the causation analysis. For example, in Sharkey v. Fortress Systems, International , 397 the District Court for the Western District of North Carolina entered summary judgment against a female employee who alleged retaliation when she was terminated after she refused to agree to a new compensation plan that would have reduced her base salary and increased her commission. Plaintiff claimed that she was terminated because she would not agree to the reduced compensation. But the court held that she was selected for the reduced compensation package before she complained about it. 398 So although the termination happened later in time, it was the consequence of an adverse action that occurred prior to plaintiff’s alleged protected activity. 399 Accordingly, plaintiff failed to show that her protected activity was the but-for cause of the alleged retaliatory conduct. 400 Similarly, in Yearns v. Koss Construction Co. , 401 the District Court for the Western District of Missouri held that the length of time between the alleged protected activity and adverse action showed that the two were not causally connected. Among other things, plaintiff pointed to the fact that a male employee was assigned to replace her immediately after her layoff, even though the company had claimed the layoff was the result of a “winding down” at plaintiff’s worksite. 402 But the court noted that her complaint came two months before her layoff: “Even assuming the June 2015 Complaint occurred on the last day of June, over eight weeks passed until her August layoff. This lengthy time period weakens any potential causal link.” 403 The Fourth Circuit came to a similar conclusion in Coleman v. Schneider Electric USA . 404 In that case, the Fourth Circuit held that “the relevant date is when the decisionmakers learned of [plaintiff’s] protected activity,” and noted that the adverse action happened more than one year after they learned about Plaintiff’s EEOC charge, the alleged cause for retaliation. 405 393 Id. at *1. 394 Id. at *4. 395 Id. at *5. 396 Id. 397 Sharkey v. Fortress Sys., Int’l , No. 3:18-cv-19-FDW-DCK, 2019 WL 3806050 (W.D.N.C. Aug. 13, 2019). In that case, the plaintiff worked in a sales position for a mobile surveillance and fleet management company. Id. at *1. Although she was classified as an independent contractor, rather than an employee, the court held that there existed disputed issues of material fact that prevented the court from dispensing with plaintiffs’ claims on those grounds. Id. at *5. With respect to retaliation, plaintiff alleged that she was being singled out for unequal pay by means of the new compensation plan and that she had been terminated in retaliation for her refusal to sign onto that new plan. Id. at *4. 398 Id. at *8. 399 Id. 400 Id. See also Desai v. Univ. of Mass., Mem. Med. Ctr., Inc. , 415 F. Supp. 3d 236, 240 (D. Mass. 2019) (denying motion to dismiss because plaintiff—a doctor employed by a medical school—had pled at least three adverse actions and: “[b]ecause any discriminatory motivation underlying these actions may be attributable to Defendant Medical School, the Court finds that Plaintiff has shown a plausible entitlement to relief on her discrimination claims.”). 401 Yearns v. Koss Constr. Co. , No. 17-cv-4201-C-WJE, 2019 WL 191656 (W.D. Mo. Jan. 14, 2019). In this case, a general laborer and traffic controller for a construction company complained that she was terminated after she complained about, among other things, unequal pay at her workplace. Id. at *1. 402 Id. at *4. 403 Id. at *5. 404 Coleman v. Schneider Elec. USA , 755 F. App’x 247 (4th Cir. 2019). 405 Id. at 250. Moreover, plaintiff had been unable to point to any other evidence of retaliatory animus. The court noted that she had been given an above-average performance review after her EEOC charge, which “undercut[] any inference that [plaintiff’s supervisor] acted with retaliatory animus when he issued the disputed performance evaluation.” Id.