74 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP her complaints about gender-based discrimination. The court analyzed the claims under Title VII and the EPA the same way, using the McDonnell Douglas burden-shifting framework.559 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.560 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.”561 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.”562 On August 9, 2023, the Third Circuit affirmed the district court’s decision, holding that the record showed that “[plaintiff] was repeatedly told that the position would require her to be in Pennsylvania and the two men ultimately hired for the position both worked in [employer’s] Pennsylvania headquarters.”563 The court also rejected plaintiff’s arguments regarding the restructuring. Although plaintiff was terminated just one week after she complained about her bonus, the court found that “documents and testimony corroborate that [the employer] was, in fact, undergoing a company-wide restructuring at the time of [plaintiff’s] termination.”564 Moreover, plaintiff was not the only employee who was terminated, others were also affected; the court noted that the Finance Manager position was also eliminated. Given these facts, the court concluded that “temporal proximity does not undermine the legitimacy of [plaintiff’s] reasons for her termination.”565 Some recent decisions have also addressed what counts as “protected activity” under the EPA’s antiretaliation provisions. For example, in Barnard v. Power Valley Electric Cooperative,566 a manager alleged 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.567 The court noted that 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.”568 A closely related question is whether protected activity occurred at all. For example, in Craven v. City of New York,569 the court dismissed an EPA retaliation claim because the plaintiff failed to establish she had 559 Id. at *9. Regarding the failure to promote allegations, the court held that plaintiff failed to demonstrate a causal connection between her complaint about her promotion and the denial of her promotion. Although those events happened within about a month of each other, under Third Circuit precedent, “temporal proximity of greater than ten days requires supplementary evidence of retaliatory motive.” Id. at *10. Plaintiff had failed to produce such evidence of a retaliatory motive. 560 Id. at *11. 561 Id. 562 Id. at *13. 563 Carlson v. Qualtek Wireless LLC, No. 22-2569, 2023 WL 5094566, at *3 (3d Cir. Aug. 9, 2023). 564 Id. at *4. 565 Id. 566 Barnard v. Power Valley Elec. Coop., No. 3:18-cv-537, 2021 WL 1383228 (E.D. Tenn. Apr. 12, 2021). 567 Id. at *2-3. 568 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. 569 Craven v. City of N.Y., No. 19-cv-1486 (JMF), 2020 WL 2765694 (S.D.N.Y. May 28, 2020).
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