64 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP dismissed an EPA claim that was brought against four individual defendants rather than plaintiff’s actual entity employer. In that case, a female employee alleged she was paid less and did not receive the same benefits, pension, vacation, or full-time 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.533 However, with respect to the EPA, courts within the Seventh Circuit had come to different conclusions. Under the FLSA’s definition of “employer,” an individual may be sued if that person is someone who is acting directly or indirectly in the interest of an employer in relation to an employee. Accordingly, the court held that in order to proceed on an EPA claim against an individual defendant, “a plaintiff must not only explain what each defendant did, but must explain how each defendant’s actions harmed her.”534 The court granted the defendant’s motion to dismiss because plaintiff had failed to allege those facts. 5. 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 if a violation is determined to be willful, then a three-year statute of limitations applies.535 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.”536 It is a plaintiff’s burden to establish willfulness, and it is usually the jury that must make that determination. But where the facts are undisputed, a court can make the willfulness determination at summary judgment. And although this issue is usually about the extent, rather than the existence, of liability, there are some occasions when timing issues are especially critical, and the willfulness issue can actually decide the outcome of a case. For example, in Cunningham v. Advantix Digital, LLC,537 an account manager for an online marketing services company alleged, among other things, that she was paid less than a comparator who was hired around the same time as her, but who had been terminated several years prior. 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.”538 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 failed to show willfulness, explaining that plaintiff “points to no evidence in the record in support of her assertion that [employer] willfully violated the EPA.”539 Similarly, in Jones v. Trane US, Inc.,540 a management-level employee alleged, among other things, unequal pay and retaliation. At issue was whether plaintiff’s EPA claim was barred by the statute of limitations because she had received her last paycheck more than two years prior to her lawsuit. The court first held that neither the filing of an earlier informal complaint, nor filing a charge of discrimination with the EEOC constitutes the filing of a legal claim for purposes of the statute of limitations.541 The court then rejected her attempt to show a willful violation. The only proof plaintiff had proffered was the mere fact that a pay disparity existed, and the employer knew about it: “for a claim to fall into the category of a willful violation there must be something more than proof of merely a violation of the EPA.”542 533 Id. at *5. 534 Id. at *6. 535 29 U.S.C. § 255(a). 536 McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). 537 Cunningham v. Advantix Digital, LLC, No. 3:19-cv-0210-G, 2020 WL 1915693 (N.D. Tex. Apr. 20, 2020). 538 Id. at *14. 539 Id. at *15. 540 Jones v. Trane US, Inc., No. 3:19-cv-0453, 2020 WL 5088211 (M.D. Tenn. Aug. 28, 2020). 541 Id. at *9. 542 Id. at *10.
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