66 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP decision to change plaintiff’s position from a full-time position to multiple part-time positions. The employer—a county—argued that it could not be held liable because the decision had been made by a state employee (a judge). However, the court held that the employer had failed to “cite to any evidence that the Board had no authority to decide whether to change the public defender position from full-time to part-time . . . . [a]nd, the evidence, state law, and logic suggest the Board did have authority to decide the nature of the public defender position.”538 The court noted that the employer county controlled its own purse strings and had authority to decide whether the office of the public defender would even exist. Nevertheless, the court held in the employer’s favor, finding that the plaintiff had failed to demonstrate a sufficient causal link between her protected activity and the alleged retaliatory conduct. Among other things, the plaintiff argued that the county’s stated reasons for the change in her position were pretextual. Contrary to the county’s argument that switching to part-time public defenders would save money, plaintiff argued that it would in fact cost the county money because it could not obtain reimbursement from the state for all of the part-time positions.539 The state had allowed the county to seek reimbursement for all part-time public defenders by using only one of the part-timer’s names. Given these facts, the court held that plaintiff’s arguments ignored the reality that the county had been receiving that reimbursement for all part-timers since the switch was made.540 The court also rejected plaintiff’s claims of a wide-ranging conspiracy, which were premised on the county’s alleged botched execution of its strategy to convert one full-time position into several part-time positions, holding that: “In hindsight, it is apparent that [the Judge’s] assessment [i.e., the judge who made the decision to switch to part-time public defenders] was plagued by incomplete information and untested assumptions. But even so, that is not enough to establish pretext.”541 In another recent case, Carmody v. New York University,542 an emergency room physician was able to survive summary judgment by producing evidence that she was terminated in retaliation for her complaints about gender discrimination. The employer argued it was because she had falsified a patient record; she allegedly wrote that she had examined a patient before signing off on the patient’s treatment when she had not. However, plaintiff was able to show that what she was accused of doing was common and that other male physicians had not been disciplined after doing something similar.543 The court held that this evidence was sufficient for a reasonable jury to conclude that prohibited discrimination was at least one of the motivating factors in her termination.544 The exact timing of events is often critical to the causation analysis. For example, in Schottel v. Nebraska State College System,545 a college instructor alleged retaliation under Title VII because she was terminated after complaining about pay discrimination. The employer argued that her termination was due to, among other things, how she managed her class. Plaintiff’s complaint about pay discrimination was made less than three weeks before her employer started the investigation that eventually led to her termination.546 Despite this close temporal proximity, the Eighth Circuit held that plaintiff had failed to establish causation because her employer had presented a “’lawful, obvious alternative explanation for the alleged conduct’ that renders [plaintiff’s] theory of causation based on temporal proximity implausible.”547 Moreover, she had failed to show that the employer’s proffered reason for her 538 Id. at *16. 539 Id. at *17. 540 Id. at *18. 541 Id. at *19. 542 Carmody v. N.Y. Univ., No. 21-cv-8186(LGS), 2023 WL 5803432 (S.D.N.Y. Sept. 7, 2023). 543 Id. at *4. 544 Id. at *5. 545 Schottel v. Neb. State Coll. Sys., 42 F.4th 976 (8th Cir. 2022). 546 Id. at 983-84. 547 Id. at 984 (quoting Wilson v. Ark. Dep't of Hum. Servs., 850 F.3d 368, 373 (8th Cir. 2017)).
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