84 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP On August 24, 2023, the Fifth Circuit affirmed the district court’s decision.674 With respect to the Chancellor, the court held that plaintiffs failed to allege that he was involved in the rescission of their contracts, and thus affirmed the dismissal of their claims against him.675 “As an initial matter, [plaintiffs] do not allege that [Chancellor] was involved in the recission of their employment contracts, which is the only alleged retaliatory action that we hold survives summary judgment.”676 With respect to the employer’s Deputy General Counsel, the court found that even though he had participated in decisions regarding plaintiffs’ termination and drafted their termination letters, this was insufficient to establish individual liability. “[B]eing one of several voices contributing to a decision—ultimately made by another individual— to terminate Plaintiffs does not transform him into an employer….[r]eviewing employment and termination letters is a regular part of legal counsel's responsibilities, and this does not transform legal counsel into the employer of every person whose termination letter he or she reviews.”677 But, even at the motion to dismiss stage, some courts will not hesitate to dismiss allegations of individual liability that are conclusory or devoid of critical details. In Caples v. Thiel,678 the court dismissed an EPA claim that was brought against four individual defendants rather than plaintiff’s actual entity employer. The female plaintiff alleged she was paid less and did not receive the same benefits, pension, vacation, or fulltime status as her male predecessor. The court held that, under Seventh Circuit precedent, individual employees cannot be held liable under the ADA and Title VII.679 With respect to the EPA, the court held that in order to proceed against an individual defendant, “a plaintiff must not only explain what each defendant did, but must explain how each defendant’s actions harmed her.”680 The court granted the defendant’s motion to dismiss because plaintiff had failed to allege those facts. 4. Statute Of Limitations and Willfulness Issues The normal statute of limitations for a violation of the FLSA, including a violation of the EPA, is two years. But that period increases to three years if a violation is determined to be willful.681 The standard for willfulness under the FLSA is “that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.”682 It is a plaintiff’s burden to establish willfulness, and it is usually the jury that must make that determination. However, a court can decide the willfulness issue where the facts are undisputed. Although this issue is usually about the extent, rather than the existence, of liability, there are some occasions when timing questions are especially critical, and the willfulness issue can actually decide the outcome of a case. For example, in Cunningham v. Advantix Digital, LLC,683 an account manager for an online marketing services company alleged she was paid less than a comparator who was hired around the same time as her. That comparator had since been terminated, several years before she brought her claim. This gave rise to a statute of limitations issue because, as the Court noted, “the last time that the plaintiff was affected by the allegedly discriminatory pay differential between [plaintiff] and [comparator] was in November of 2016 when [comparator] was terminated, . . . and the plaintiff did not file this suit until more than two years later, on January 25, 2019.”684 In order to succeed on her claim, plaintiff would have to establish that the statute of limitations should be extended to three years. The Court held that she 674 Muslow v. La. State Univ. & Agric. & Mech. Coll., Bd. of Supervisors, No. 22-30585, 2023 WL 5498952 (5th Cir. Aug. 24, 2023). 675 Id. at *10. 676 Id. 677 Id. 678 Caples v. Thiel, No. 17-cv-1797-pp, 2019 WL 1116948 (E.D. Wisc. Mar. 11, 2019). 679 Id. at *5. 680 Id. at *6. 681 29 U.S.C. § 255(a). 682 McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). 683 Cunningham v. Advantix Digital, LLC, No. 3:19-cv-0210-G, 2020 WL 1915693 (N.D. Tex. Apr. 20, 2020). 684 Id. at *14.
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