Developments in Equal Pay Litigation

38 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP disruptive with the investigation and her team. She was placed on administrative leave, given a written corrective action, and eventually terminated . 306 At issue was whether her placement on paid administrative leave while the employer conducted the missing cash investigation qualified as an adverse action. 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). ” 307 Moreover, although her eventual termination indisputably qualified as an adverse action, the missing cash investigation was an intervening event between her complaints about alleged wage discrimination 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.” 308 A closely related question that is not usually in dispute is whether protected activity occurred at all. For example, in Craven v. City of New York , 309 a plaintiff who held various position with the New York City Human Resources Administration alleged that she was repeatedly discriminated against due to her gender and her race, eventually causing her to leave her employment. The Court dismissed the EPA retaliation claim because the plaintiff had failed to establish that 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.’” 310 Although the Court acknowledged that plaintiff alleged that 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 . 311 2. Arbitration Agreements As in many other areas of employment litigation, the existence and enforceability of arbitration agreements have become an increasingly important defense for employers. The issue before the court usually revolves around whether the arbitration provision in question covers equal pay claims. Plaintiffs’ attempts to argue around such provisions can be quite creative, but are most often unsuccessful. For example, in In Govindharajan v. Tata Consultancy Services, Ltd. , 312 the District Court for the Southern District of New York enforced an arbitration provision even though it required a U.S.-based employee to arbitrate under an Indian arbitration program, and possibly under Indian law. In that case, a Business Development Manager working for an Indian-based consultancy on assignment in New York and New Jersey brought a class action complaint alleging, among other things, that his employer violated the EPA by paying him less than his United States-based coworkers . 313 Prior to relocating to the United States, the plaintiff had signed a deputation agreement with a dispute resolution clause that the employer argued required him to bring his claims in arbitration. The plaintiff made several arguments against the 306 Id. at *4-5. 307 Id. at *15. 308 Id. at *16 (quoting Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 1001-02 (10th Cir. 2011)). 309 Craven v. City of N.Y. , No. 19-CV-1486 (JMF), 2020 WL 2765694 (S.D.N.Y. May 28, 2020). 310 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)). 311 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)), 312 Govindharajan v. Tata Consultancy Servs., Ltd. , No. 19-CV-10017 (RA), 2020 WL 4016109 (S.D.N.Y. July 16, 2020). 313 Id. at *1-2.