56 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP Other recent decisions have considered what counts as an “adverse action.” For example, in Talbott v. Public Service Company of New Mexico, PNM,463 a manager of Customer Service Revenue alleged 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.464 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 leave for allegedly interfering with the investigation, to the extent anyone was the target of the investigation, Plaintiff herself acknowledged that this person was [a different employee] (rather than Plaintiff).”465 Moreover, although her eventual termination indisputably qualified as an adverse action, the missing cash investigation was an intervening event that broke the causal connection between that protected conduct and her termination: “evidence of temporal proximity has minimal probative value in a retaliation case where intervening events between the employee's protected conduct and the challenged employment action provide a legitimate basis for the employer's action.”466 2. Arbitration Agreements As in many other areas of employment litigation, the existence and enforceability of arbitration agreements have become an increasingly important defense for employers. The issue before the court is usually whether the arbitration provision in question covers equal pay claims. Plaintiffs’ attempts to argue around such provisions can be quite creative, but are often unsuccessful. For example, in Zoller v. GCA Advisors, LLC,467 an investment banker had brought discrimination claims against her employer, including claims under the EPA. Plaintiff had signed an agreement that set her compensation and benefits, and which also included an arbitration provision that required arbitration of “[a]ny controversy or claim relating to or arising out of her employment with the Company. . . .”468 At issue was whether plaintiff had knowingly waived her right to proceed in a judicial forum.469 The Ninth Circuit found that “[b]oth the employment agreement and the confidentiality, non-solicitation and arbitration 463 Talbott v. Pub. Serv. Co. of N.M., PNM, No. 18-cv-1102 SCY/LF, 2020 WL 2043481 (D.N.M. Apr. 28, 2020). 464 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. 465 Id. at *15. 466 Id. at *16 (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001-02 (10th Cir. 2011)). 467 Zoller v. GCA Advisors, LLC, 993 F.3d 1198 (9th Cir. 2021). 468 Id. at 1200. 469 The Ninth Circuit explained that the “knowing waiver” doctrine “is our judicially created requirement that narrows the [Federal Arbitration Act’s] scope when other federal statutes explicitly limit the enforcement of arbitration agreements.” Id. at 1201. Under that doctrine, a party seeking to evade arbitration may establish a congressional intent to preclude waiver of judicial resolution of certain statutory rights “which would be discoverable in the text of the statutes creating her private right of action, the respective legislative histories, or an ‘inherent conflict’ between arbitration and the statutes’ underlying purposes.” Id. (citing and quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)). The Ninth Circuit has found such an intention in Title VII and other similar statutes, which “derives from a recognition of the importance of the federal policy of protecting the victims of discrimination.” Id. at 1202. As an employee in the financial industry, the plaintiff had signed a Form U4, which is required by the Financial Industry Regulatory Authority (“FINRA”). The Form U4 contained an arbitration provision that explicitly excluded claims alleging employment discrimination from its scope. In a prior decision, the Ninth Circuit had found that financial industry employees who had signed a Form U4 could not have knowingly waived their right to judicial remedies because the form did not describe the types of actions subject to arbitration. Id. (citing Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir. 1994) and Renteria v. Prudential Ins. Co. of Am., 113 F.3d 1104 (9th Cir. 1997)). But although plaintiff’s employment claims were excluded from the arbitration provision contained in the Form U4, the court held there was nothing in that form that would preclude the arbitration of those claims under FINRA rules provided that the parties had separately agreed to arbitrate those disputes, which they had. The Ninth Circuit therefore concluded that the district court “erred in holding that the arbitration agreement's reference to the FINRA rules related to the way arbitration would be conducted rather than the matters subject to arbitration.” Id. at 1204.
RkJQdWJsaXNoZXIy OTkwMTQ4