The Lawletter Vol 41 No 11
As with most forms of employment discrimination, an employer's retaliation against an employee for asserting discrimination under the Equal Pay Act ("EPA") gives rise to an additional and distinct cause of action for the employee. To state a claim for retaliation under the EPA (as incorporated into the Fair Labor Standards Act), a plaintiff must plausibly allege (1) engagement in protected activity, (2) materially adverse action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination, and (3) causality.
A showing of the causality element requires either (1) that the retaliation closely followed the protected activity, or (2) that the plaintiff put forth a sufficient explanation for the delay between the protected activity and the alleged retaliation. Where the time between the protected conduct and the alleged retaliation is too great to establish causation based solely on temporal proximity, a plaintiff must present other relevant evidence to establish causation, such as continuing retaliatory conduct and animus in the intervening period. In addition, when there may be valid reasons why an adverse employment action was not taken immediately, the absence of immediacy between the cause and the effect does not disprove causation in a retaliation case.
These principles were recently applied to a case brought by a former Assistant Attorney General against her employer, the Attorney General of Virginia, alleging unequal pay and unlawful retaliation under the EPA. Reardon v. Herring, No. 3:16CV34, 2016 WL 4472963 (E.D. Va. Aug. 23, 2016). In this case, approximately 8 or 10 weeks elapsed between the final instance of the alleged protected activity by Reardon concerning gender discrimination in compensation and her eventual termination. This placed the plaintiff in the category of cases where the separation in time between the two events was sufficiently long so as to weaken significantly the inference of causation, requiring her to present additional evidence of retaliation. See Perry v. Kappos, 489 F. App'x 637 (4th Cir. 2012) (10-week temporal proximity between African-American employee's filing of informal complaint of racial discrimination against his employer and termination of his employment was insufficient, standing alone, to support his claim for retaliation in violation of Title VII of the Civil Rights Act of 1964).
In Reardon, the plaintiff advanced two separate arguments for establishing a prima facie case of retaliation, notwithstanding the passage of time between her protected activity and her termination. She failed on the first contention, but succeeded on the second, thereby overcoming the defendant employer's motion to dismiss. First, Reardon's allegations that after her unequal pay complaint, her supervisor rarely spoke to her and actively avoided her, assigned a desirable exterior office with a window to another attorney despite the fact that Reardon was next in line for consideration for such an office, and did not congratulate her or announce the favorable verdict of a trial in which Reardon served as lead attorney did not rise to the level required for "ongoing animus" such as would satisfy the causation element of a retaliation claim. The conduct that suffices to establish an ongoing animus in the existing case law is much more severe than the conduct that Reardon pleaded. See Lettieri v. Equant Inc., 478 F.3d 640 (4th Cir. 2007) (terminated female director satisfied causation element of prima facie case of retaliation, where evidence of her employer's continuing retaliatory conduct and animus in seven-month intervening period was sufficient to establish causal link between her complaint of discrimination and her termination; employer stripped plaintiff of significant job responsibilities, reduced her supervisory responsibilities, and took away her authority to meet directly with clients, all of which made it easier for employer to later claim that plaintiff was not needed and could be terminated).
However, Reardon met with more success in arguing that there were valid reasons why she was not fired immediately after her protected activity, so that the absence of immediacy between the cause and the effect did not disprove causation in her retaliation case. She alleged that she served as the lead attorney on two separate "extensive" prosecutions, and that terminating her before the conclusion of those matters would have jeopardized a trial, given the large amount of trial preparation she had performed. This provided a valid reason for the delay between her protected activity in making her unequal pay complaint and her termination 8 to 10 weeks later, so as to reestablish the presumption of a causal link, especially at the motion to dismiss stage in her action alleging retaliation under the EPA. In support of this conclusion, the court in Reardon cited a very similar case from another circuit. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) ("SunGard may have recognized that termination of Kachmar immediately after her January 15, 1993 meeting with Gross could have resulted in disruption of the small, three-attorney in-house counsel's office. After all, Kachmar was senior in-house counsel, not one of many interchangeable employees on an assembly line. We do not know whether she was involved in long-term negotiations or litigation that could have deterred SunGard from terminating her immediately.")