68 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP credible . . . and we must deny summary judgment. She looks for a jury and argues the wisdom of [employer’s] business judgment; she seemingly would do it differently. But she is not the employer.”556 On August 9, 2023, the Third Circuit affirmed the district court’s decision, holding that the record showed that “[plaintiff] was repeatedly told that the position would require her to be in Pennsylvania and the two men ultimately hired for the position both worked in [employer’s] Pennsylvania headquarters.”557 The court also rejected plaintiff’s arguments regarding the restructuring. Although plaintiff was terminated just one week after she complained about her bonus, the court found that “documents and testimony corroborate that [the employer] was, in fact, undergoing a company-wide restructuring at the time of [plaintiff’s] termination.”558 Moreover, plaintiff was not the only employee who was terminated, others were also affected; the court noted that the Finance Manager position was also eliminated. Given these facts, the court concluded that “temporal proximity does not undermine the legitimacy of [plaintiff’s] reasons for her termination.”559 Some recent decisions have also addressed what counts as “protected activity” under the EPA’s antiretaliation provisions. For example, in Barnard v. Power Valley Electric Cooperative,560 a manager alleged she was placed on administrative leave and later fired after she brought complaints about discrimination to the company’s Audit Committee, along with supporting documents and a seven page letter that described alleged sexual harassment and discriminatory pay practices.561 The court noted that 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.”562 A closely related question is whether protected activity occurred at all. For example, in Craven v. City of New York,563 the court dismissed an EPA retaliation claim because the plaintiff failed to establish she had complained about unequal pay with sufficient particularity to put the employer on notice that a grievance had been lodged against it: “To premise a retaliation claim on an oral complaint to her employer, a plaintiff must allege that her complaint was ‘made with a ‘degree of formality’ and that its content and context provide ‘fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of [the employer's] business concerns.’”564 Although the court acknowledged that plaintiff alleged she had complained about her pay and level of responsibility as compared to other employees, it concluded that “there is no indication that she was actually complaining of conduct that plausibly rises to an Equal Pay Act violation,” particularly in light of the fact that she did not mention her alleged comparator when she made those statements to her employer.565 Other recent decisions have considered what counts as an “adverse action.” For example, in Noonan v. Consolidated Shoe Co.,566 a Content Marketing Coordinator for a shoe distributor alleged she was 556 Id. at *13. 557 Carlson v. Qualtek Wireless LLC, No. 22-2569, 2023 WL 5094566, at *3 (3d Cir. Aug. 9, 2023). 558 Id. at *4. 559 Id. 560 Barnard v. Power Valley Elec. Coop., No. 3:18-cv-537, 2021 WL 1383228 (E.D. Tenn. Apr. 12, 2021). 561 Id. at *2-3. 562 Id. (internal citations omitted). The employer also argued that her complaint was too vague. But 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. Id. at *6. 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. Id. at *7. 563 Craven v. City of N.Y., No. 19-cv-1486 (JMF), 2020 WL 2765694 (S.D.N.Y. May 28, 2020). 564 Id. at *7 (quoting Lenzi v. Systemax, Inc., No. 14-cv-7509 (SJF), 2015 WL 6507842, at *5 (E.D.N.Y. Oct. 26, 2015)). 565 Id. (quoting Kent-Friedman v. N.Y. State Ins. Fund, No. 18-cv-4422 (VM), 2018 WL 6547053, at *2 (S.D.N.Y. Nov. 16, 2018)). 566 Noonan v. Consol. Shoe Co., 84 F.4th 566 (4th Cir. 2023).
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