Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 37 occurred prior to plaintiff’s alleged protected activity. 294 Accordingly, plaintiff failed to show that her protected activity was the but-for cause of the alleged retaliatory conduct . 295 Similarly, in Yearns v. Koss Construction Co. , 296 the District Court for the Western District of Missouri held that the length of time between the alleged protected activity and adverse action showed that the two were not causally connected. Among other things, plaintiff pointed to the fact that a male employee was assigned to replace her immediately after her layoff, even though the company had claimed the layoff was the result of a “winding down” at plaintiff’s worksite . 297 But the court noted that her complaint came two months before her layoff: “Even assuming the June 2015 Complaint occurred on the last day of June, over eight weeks passed until her August layoff. This lengthy time period weakens any potential causal link. ” 298 The Fourth Circuit came to a similar conclusion in Coleman v. Schneider Electric USA . 299 In that case, the Fourth Circuit held that “the relevant date is when the decisionmakers learned of [plaintiff’s] protected activity,” and noted that the adverse action happened more than one year after they learned about Plaintiff’s EEOC charge, the alleged cause for retaliation. 300 On the other hand, when an adverse action follows closely after a plaintiff’s protected activity, this can be powerful evidence to establish a causal link between the two events. For example, in Donathan v. Oakley Grain, Inc. , 301 a female employee alleged that her employer terminated her in retaliation for complaining that she had not received bonuses in line with other employees in similar positions, and that new employees were starting at higher rates of pay. Plaintiff was laid off approximately eight days later . 302 The Eighth Circuit held that: “[plaintiff] was terminated from her office position even though [employer] had not included the office position in its seasonal layoffs any of the prior three years that [plaintiff] had worked for the company (or during the years when [plaintiff’s] predecessor held the post). Plaintiff’s termination occurred despite the absence of negative reviews, and [employer] hired [replacement] to fill the position the very next working day.” 303 Some courts have addressed what counts as “protected activity” under the EPA. For example, in Talbott v. Public Service Company of New Mexico, PNM , 304 a manager of Customer Service Revenue alleged that 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. 305 Among other things, the employer argued that the plaintiff had not been cooperative with the missing cash investigation and was 294 Id. 295 Id. See also Desai v. Univ. of Mass., Mem. Med. Ctr., Inc. , 415 F. Supp. 3d 236, 240 (D. Mass. 2019) (denying motion to dismiss because plaintiff – a doctor employed by a medical school – had pled at least three adverse actions and: “[b]ecause any discriminatory motivation underlying these actions may be attributable to Defendant Medical School, the Court finds that Plaintiff has shown a plausible entitlement to relief on her discrimination claims.”). 296 Yearns v. Koss Constr. Co. , No. 17-CV-4201-C-WJE, 2019 WL 191656 (W.D. Mo. Jan. 14, 2019). In this case, a general laborer and traffic controller for a construction company complained that she was terminated after she complained about, among other things, unequal pay at her workplace. Id. at *1. 297 Id. at *4. 298 Id. at *5. 299 Coleman v. Schneider Electric USA , 755 F. App’x 247 (4th Cir. 2019). 300 Id. at 250. Moreover, plaintiff had been unable to point to any other evidence of retaliatory animus. The court noted that she had been given an above-average performance review after her EEOC charge, which “undercut[] any inference that [plaintiff’s supervisor] acted with retaliatory animus when he issued the disputed performance evaluation.” Id. 301 Donathan v. Oakley Grain, Inc. , 861 F.3d 735 (8th Cir. 2017). 302 Id. at 737. As further evidence of the time-causation connection, the Eighth Circuit noted that ten minutes after Plaintiff put her complaints in an email to the president of the company, the president forwarded her email to plaintiff’s manager and they discussed her complaint by phone. Id. 303 Id. at 740-41. 304 Talbott v. Pub. Serv. Company of N.M., PNM , No. 18-CV-1102 SCY/LF, 2020 WL 2043481 (D.N.M. Apr. 28, 2020). 305 Id. at *3-4.