Developments in Equal Pay Litigation

36 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP D.Other Important Substantive Decisions Impacting Pay Equity Litigation 1. Retaliation Claims: Establishing The Causal Link Because the federal EPA is incorporated into the FLSA, it includes the anti-retaliation provisions of that statute. Section 15(a)(3) of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has” engaged in protected conduct, such as filing a complaint of wage discrimination. 286 Establishing a causal link between a plaintiff’s protected activity and the adverse employment action allegedly suffered as a result of that activity is often the most difficult burden for a plaintiff to overcome to establish liability on a retaliation claim. For example, in Oulia v. Florida Department of Transportation , 287 the District Court for the Southern District of Florida granted summary judgment in favor of an employer on an EPA retaliation claim due to plaintiff’s failure to establish causation. In that case, a female employee of a state agency claimed, among other things, that she was terminated because she asked why a male employee was authorized to work overtime while she was not. 288 The Court held that plaintiff’s request qualified as protected activity and that her termination qualified as an adverse action. 289 But the Court held that the plaintiff had failed to establish a causal connection between the two. Although the plaintiff had complained about unequal opportunity to work overtime to her manager, she had not produced evidence that her manager had communicated that complaint to her supervisor, who was the decision-maker regarding her termination, and in fact, the supervisor and manager had testified to the contrary. 290 The Court held that this was “fatal to her attempted prima facie retaliation claim.” 291 Timing is often critical to the causation analysis. For example, in Sharkey v. Fortress Systems, International , 292 the District Court for the Western District of North Carolina entered summary judgment against a female employee who alleged retaliation when she was terminated after she refused to agree to a new compensation plan that would have reduced her base salary and increased her commission. Plaintiff claimed that she was terminated because she would not agree to the reduced compensation. But the court held that she was selected for the reduced compensation package before she complained about it. 293 So although the termination happened later in time, it was the consequence of an adverse action that 286 29 U.S.C. § 215(a)(3). Under the FLSA, an employee has engaged in protected conduct if he or she has “filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” Id. What counts as “filing a complaint“ is often a contentious issue. For example, in Burke v. State of New Mexico , 696 F. App’x 325 (10th Cir. 2017), the Tenth Circuit affirmed the district court’s dismissal of, among other things, a retaliation claim brought pursuant to New Mexico’s Fair Pay for Women Act because the plaintiff failed to allege that she had engaged in any protected conduct. Analyzing the statute under the rubric of the federal EPA, the Tenth Circuit held that although plaintiff had alleged that she had questioned her superiors about an alleged pay disparity, she had failed to allege that this “questioning” rose to the level of actual objection or opposition to the alleged pay disparity. Id. at *2. 287 Oulia v. Florida Dep’t of Transp. , No. 18-CV-25110-Scola, 2020 WL 2084998 (S.D. Fla. Apr. 30, 2020). 288 Id. at *1. 289 Id. at *4. 290 Id. at *5. 291 Id. 292 Sharkey v. Fortress Sys., Int’l , No. 3:18-CV-19-FDW-DCK, 2019 WL 3806050 (W.D.N.C. Aug. 13, 2019). In that case, the plaintiff worked in a sales position for a mobile surveillance and fleet management company. Id. at *1. Although she was classified as an independent contractor, rather than an employee, the court held that there existed disputed issues of material fact that prevented the court from dispensing with plaintiffs’ claims on those grounds. Id. at *5. With respect to retaliation, plaintiff alleged that she was being singled out for unequal pay by means of the new compensation plan and that she had been terminated in retaliation for her refusal to sign onto that new plan. Id. at *4. 293 Id. at *8.