Developments In Equal Pay Litigation - 2022 Update

48 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP On the other hand, when an adverse action follows closely after a plaintiff’s protected activity, this can be powerful evidence to establish a causal link between the two events. For example, in Donathan v. Oakley Grain, Inc. , 406 a female employee alleged that her employer terminated her in retaliation for complaining that she had not received bonuses in line with other employees in similar positions, and that new employees were starting at higher rates of pay. Plaintiff was laid off approximately eight days later. 407 The Eighth Circuit held that: “[plaintiff] was terminated from her office position even though [employer] had not included the office position in its seasonal layoffs any of the prior three years that [plaintiff] had worked for the company (or during the years when [plaintiff’s] predecessor held the post). Plaintiff’s termination occurred despite the absence of negative reviews, and [employer] hired [replacement] to fill the position the very next working day.” 408 Some courts have addressed what counts as “protected activity” under the EPA. For example, in Barnard v. Power Valley Electric Cooperative , 409 a manager of an electric distribution cooperative alleged, among other things, that she had been retaliated against for bringing to light certain discriminatory and other unlawful activity at the company. 410 She recorded a conversation with another manager about those issues and then brought those issues to the company’s Audit Committee, along with supporting documents and a seven page letter that described alleged sexual harassment and discriminatory pay practices. Plaintiff was immediately placed on administrative leave and later fired. 411 The employer first tried to argue that plaintiff’s complaint to the Audit Committee could not qualify as protected activity because it was either too vague or because it was part of her job and therefore not adversarial to the company. With respect to vagueness, the court noted that even informal complaints can be protected activity so long as it can reasonably be understood by the employer to constitute a complaint of sex discrimination. 412 The court held that plaintiff’s complaint easily met that threshold, noting that “[plaintiff’s] seven-page letter detailed how her employees—who were almost all women—had not received pay raises when compared to other employees—who were almost all men—in the company,” which came with a complaint about a long history of sexual harassment as well. 413 With respect to the employer’s other argument, the court noted that a protected activity must be adverse to an employer’s interests; i.e., an employee does not engage in protected activity when he or she investigates discrimination on the employer’s behalf with the intention of limiting the employer’s liability for such discrimination. But that was not the case here. In this case, the court held that “it was sufficiently clear that [plaintiff’s] request was adversarial. She asked for a pay raise for herself. . . . Before she was fired, she hired an attorney and told [employer’s] counsel, on multiple occasions, that she was considering a lawsuit.” 414 Similarly, in Talbott v. Public Service Company of New Mexico, PNM , 415 a manager of Customer Service Revenue alleged that she was retaliated against when she was subjected to an investigation, placed on administrative leave, and terminated due to her persistent questions and complaints about being paid less than male managers. The employer argued that the real reason for its actions against plaintiff was due to her conduct during its investigation of an incident involving a cash discrepancy. 416 The court held that the employer’s missing cash investigation, by itself, cannot constitute an adverse employment action because she had not been the target of the investigation: “although Defendant placed Plaintiff on administrative 406 Donathan v. Oakley Grain, Inc. , 861 F.3d 735 (8th Cir. 2017). 407 Id. at 737. As further evidence of the time-causation connection, the Eighth Circuit noted that ten minutes after Plaintiff put her complaints in an email to the president of the company, the president forwarded her email to plaintiff’s manager and they discussed her complaint by phone. Id. 408 Id. at 740-41. 409 Barnard v. Power Valley Elec. Coop. , No. 3:18-cv-537, 2021 WL 1383228 (E.D. Tenn. Apr. 12, 2021). 410 Id. at *1-2. 411 Id. at *2-3. 412 Id. at *6. 413 Id. at *7. 414 Id. (internal citations omitted). 415 Talbott v. Pub. Serv. Co. of N.M., PNM , No. 18-cv-1102 SCY/LF, 2020 WL 2043481 (D.N.M. Apr. 28, 2020). 416 Id. at *3-4. Among other things, the employer argued that the plaintiff had not been cooperative with the missing cash investigation and was disruptive with the investigation and her team. She was placed on administrative leave, given a written corrective action, and eventually terminated. Id. at *4-5.