72 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP conduct, such as filing a complaint of wage discrimination.541 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. Issues of causation can be quite complex. For example, in Loos v. County of Perry, Illinois,542 a county public defender alleged, among other things, that her employer constructively discharged her when it significantly changed her position and refused to pay her earned benefits.543 At issue was the employer’s decision to change plaintiff’s position from a full-time position to multiple part-time positions. The employer—a county—argued that it could not be held liable because the decision had been made by a state employee (a judge). However, the court held that the employer had failed to “cite to any evidence that the Board had no authority to decide whether to change the public defender position from full-time to part-time . . . . [a]nd, the evidence, state law, and logic suggest the Board did have authority to decide the nature of the public defender position.”544 The court noted that the employer county controlled its own purse strings and had authority to decide whether the office of the public defender would even exist. Nevertheless, the court held in the employer’s favor, finding that the plaintiff had failed to demonstrate a sufficient causal link between her protected activity and the alleged retaliatory conduct. Among other things, the plaintiff argued that the county’s stated reasons for the change in her position were pretextual. Contrary to the county’s argument that switching to part-time public defenders would save money, plaintiff argued that it would in fact cost the county money because it could not obtain reimbursement from the state for all of the part-time positions.545 The state had allowed the county to seek reimbursement for all part-time public defenders by using only one of the part-timer’s names. Given these facts, the court held that plaintiff’s arguments ignored the reality that the county had been receiving that reimbursement for all part-timers since the switch was made.546 The court also rejected plaintiff’s claims of a wide-ranging conspiracy, which were premised on the county’s alleged botched execution of its strategy to convert one full-time position into several part-time positions, holding that: “In hindsight, it is apparent that [the Judge’s] assessment [i.e., the judge who made the decision to switch to part-time public defenders] was plagued by incomplete information and untested assumptions. But even so, that is not enough to establish pretext.”547 In another recent case, Carmody v. New York University,548 an emergency room physician was able to survive summary judgment by producing evidence that she was terminated in retaliation for her complaints about gender discrimination. The employer argued it was because she had falsified a patient record; she allegedly wrote that she had examined a patient before signing off on the patient’s treatment when she had not. However, plaintiff was able to show that what she was accused of doing was common and that other male physicians had not been disciplined after doing something similar.549 The court held 541 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. 542 Loos v. Cnty. of Perry, Ill., No. 3:20-cv-1107-MAB, 2023 WL 6382364 (S.D. Ill. Sept. 30, 2023). 543 Id. at *15. 544 Id. at *16. 545 Id. at *17. 546 Id. at *18. 547 Id. at *19. 548 Carmody v. N.Y. Univ., No. 21-cv-8186(LGS), 2023 WL 5803432 (S.D.N.Y. Sept. 7, 2023). 549 Id. at *4.
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