©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 69 discriminated against with respect to pay and then retaliated against when she complained about it. She alleged that her employer retaliated against her by: (1) threatening to fire her when she complained of discrimination; (2) taking away some of her job responsibilities; and (3) refusing to provide her a letter of recommendation after she was let go (the termination itself was not alleged to be retaliatory).567 The court first held that the employer’s one-off, inaccurate statement to plaintiff that her knowing a co-worker's pay was a fireable offense, even if it could be characterized as a “threat,” was not sufficiently adverse to be actionable. Explaining that retaliatory conduct must be “’materially adverse,’ which means the plaintiff must show ‘significant’ harm that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination,’”568 the court held that “no reasonable juror would conclude that the threat was a significant harm that would have dissuaded a reasonable worker from making a charge of discrimination.”569 With respect to plaintiff’s job responsibilities, the court applied an objective standard, holding that “the record does not support the claim that her reduced responsibilities were objectively more desirable or prestigious than her increased responsibilities,” that they offered fewer opportunities for promotion or professional development, or that she was demoted either in title or in compensation.570 The fact that her new responsibilities were subjectively less appealing to her cannot, in and of itself, constitute an adverse employment action. Finally, the court concluded that the reason her employer did not give plaintiff a letter of recommendation is because she did not accept its severance package, which included such a letter as a perk: “Accordingly, even assuming that withholding a letter of recommendation would dissuade a reasonable worker from engaging in protected activity, no reasonable jury could find the necessary “causal link between the two events.”571 Similarly, in Talbott v. Public Service Company of New Mexico, PNM,572 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.573 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).”574 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.”575 2. Proving An “Establishment” The federal EPA requires plaintiffs to compare their wages against other employees within the same physical place of business in which they work. According to regulations issued by the EEOC, a single establishment “refers to a distinct physical place of business” within a company; “each physically separate 567 Id. at 571-72. 568 Id. at 575 (quoting Israelitt v. Enter. Servs. LLC, 78 F.4th 647, 656 (4th Cir. 2023)). 569 Id. 570 Id. at 575-76. 571 Id. at 576. (quoting Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015)). 572 Talbott v. Pub. Serv. Co. of N.M., PNM, No. 18-cv-1102 SCY/LF, 2020 WL 2043481 (D.N.M. Apr. 28, 2020). 573 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. 574 Id. at *15. 575 Id. at *16 (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001-02 (10th Cir. 2011)).
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