©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 55 of greater than ten days requires supplementary evidence of retaliatory motive.”453 Plaintiff had failed to produce such evidence of a retaliatory motive. But even if she had, she had also failed to establish that the employer’s reasons for not promoting her were pretext for discrimination. The evidence demonstrated that the promotion would have required moving to a different state to work at the employer’s headquarters, which plaintiff was unwilling to do.454 Plaintiff argued that the job could be done from anywhere, but the court declined to supplant its judgment for the employer’s in that regard: “our concern is not the wisdom of [employer’s] internal processes or business judgment in managing its financial team. Our concern is whether [plaintiff] can cite credible evidence [employer] failed to promote her in November 2019 as retaliation for her October 2019 complaint. [Plaintiff] offers none.”455 Similarly, the court was unwilling to second guess the employer’s business judgment regarding the restructuring that led to plaintiff’s termination: “[Plaintiff] baldly argues the Finance Team restructuring reason is not credible . . . and we must deny summary judgment. She looks for a jury and argues the wisdom of [employer’s] business judgment; she seemingly would do it differently. But she is not the employer.”456 Some recent decisions have also addressed what counts as “protected activity” under the EPA. For example, in Barnard v. Power Valley Electric Cooperative,457 a manager alleged that she was placed on administrative leave and later fired after she brought complaints about discrimination to the company’s Audit Committee, along with supporting documents and a seven page letter that described alleged sexual harassment and discriminatory pay practices.458 The employer argued that this could not qualify as protected activity because it was part of her job and therefore not adversarial to the company. The court noted that a protected activity must be adverse to an employer’s interests, i.e., an employee does not engage in protected activity when he or she investigates discrimination on the employer’s behalf with the intention of limiting the employer’s liability for such discrimination. But that was not the case here. In this case, the court held that “it was sufficiently clear that [plaintiff’s] request was adversarial. She asked for a pay raise for herself . . .. Before she was fired, she hired an attorney and told [employer’s] counsel, on multiple occasions, that she was considering a lawsuit.”459 A closely related question is whether protected activity occurred at all. For example, in Craven v. City of New York,460 a plaintiff who held various position with the New York City Human Resources Administration alleged 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 failed to establish 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.’”461 Although the court acknowledged that plaintiff alleged 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.462 453 Id. at *10. 454 Id. at *11. 455 Id. 456 Id. at *13. 457 Barnard v. Power Valley Elec. Coop., No. 3:18-cv-537, 2021 WL 1383228 (E.D. Tenn. Apr. 12, 2021). 458 Id. at *2-3. 459 Id. (internal citations omitted). The employer also argued that her complaint was too vague. But the court noted that even informal complaints can be protected activity so long as it can reasonably be understood by the employer to constitute a complaint of sex discrimination. Id. at *6. The court held that plaintiff’s complaint easily met that threshold, noting that “[plaintiff’s] seven-page letter detailed how her employees—who were almost all women—had not received pay raises when compared to other employees—who were almost all men—in the company,” which came with a complaint about a long history of sexual harassment as well. Id. at *7. 460 Craven v. City of N.Y., No. 19-cv-1486 (JMF), 2020 WL 2765694 (S.D.N.Y. May 28, 2020). 461 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)). 462 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)).
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