©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 53 the employer.”437 Similarly, in Black v. Barrett Business Services, Inc.,438 the court rejected plaintiff’s attempt to show that an employer’s reasons were a pretext for discrimination because she was not able to present evidence to show discriminatory animus on the part of her supervisors or fellow branch managers.439 Moreover, the employer was able to show that it had hired other female branch managers at salaries that were higher than plaintiff’s salary and higher than other male branch managers, and that there were other male branch managers who, like plaintiff, never received a salary raise, and that it had increased the salaries of other female branch managers over time.440 D.Other Important Substantive Decisions Impacting Equal Pay Litigation 1. Retaliation Claims 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.441 Establishing a causal link between a plaintiff’s protected activity and the alleged adverse employment action is often the most difficult burden for a plaintiff to overcome to establish liability on a retaliation claim. Timing is often critical to the causation analysis. For example, in Schottel v. Nebraska State College System,442 a college instructor alleged retaliation under Title VII because she was terminated after complaining about pay discrimination. The employer argued that her termination was due to, among other things, how she managed her class. Plaintiff’s complaint about pay discrimination was made less than three weeks before her employer started the investigation that eventually led to her termination.443 Despite this close temporal proximity, the Eighth Circuit held that plaintiff had failed to establish causation because her employer had presented a “’lawful, obvious alternative explanation for the alleged conduct’ that renders [plaintiff’s] theory of causation based on temporal proximity implausible.”444 Moreover, she had failed to show that the employer’s proffered 437 Id. at 1313 (quoting Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)). See also Hall v. Ala. State Univ., No. 2:16-cv-593-GMB, 2019 WL 137593, at *11 (M.D. Ala. Jan. 8, 2019) (“Merely questioning the wisdom of a reason is not sufficient as long as the reason is one that might motivate a reasonable employer. . . . Hall's arguments question whether ASU should have relied on [comparator’s] experience and success but do not undermine ASU's reliance on those factors. . . . This court cannot conclude, therefore, that a sufficient question of fact as to pretext exists.”). 438 Black v. Barrett Bus. Servs., Inc., No. 1:18-cv-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019). In that case, a branch manager of an employee staffing and recruiting company complained she was paid less than equally qualified branch managers at her branch and a nearby branch. The employer argued that plaintiff’s comparators were paid more because they had experience that the plaintiff did not have. Id. at *6. In particular, the employer pointed to the fact that the comparators had significant experience growing and managing their own businesses. The Company’s strategy was to hire branch managers who could successfully build their branch into multi-million-dollar revenue centers. Id. at *7. 439 Id. at *8. 440 Id. at *9. 441 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. 442 Schottel v. Neb. State Coll. Sys., 42 F.4th 976 (8th Cir. 2022). 443 Id. at 983-84. 444 Id. at 984 (quoting Wilson v. Ark. Dep't of Hum. Servs., 850 F.3d 368, 373 (8th Cir. 2017)).
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