©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 75 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.’”570 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.571 Other recent decisions have considered what counts as an “adverse action.” For example, in Noonan v. Consolidated Shoe Co.,572 a Content Marketing Coordinator for a shoe distributor alleged she was discriminated against with respect to pay and then retaliated against when she complained about it. She alleged that her employer retaliated against her by: (1) threatening to fire her when she complained of discrimination; (2) taking away some of her job responsibilities; and (3) refusing to provide her a letter of recommendation after she was let go (the termination itself was not alleged to be retaliatory).573 The court first held that the employer’s one-off, inaccurate statement to plaintiff that her knowing a co-worker's pay was a fireable offense, even if it could be characterized as a “threat,” was not sufficiently adverse to be actionable. Explaining that retaliatory conduct must be “’materially adverse,’ which means the plaintiff must show ‘significant’ harm that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination,’”574 the court held that “no reasonable juror would conclude that the threat was a significant harm that would have dissuaded a reasonable worker from making a charge of discrimination.”575 With respect to plaintiff’s job responsibilities, the court applied an objective standard, holding that “the record does not support the claim that her reduced responsibilities were objectively more desirable or prestigious than her increased responsibilities,” that they offered fewer opportunities for promotion or professional development, or that she was demoted either in title or in compensation.576 The fact that her new responsibilities were subjectively less appealing to her cannot, in and of itself, constitute an adverse employment action. Finally, the court concluded that the reason her employer did not give plaintiff a letter of recommendation is because she did not accept its severance package, which included such a letter as a perk: “Accordingly, even assuming that withholding a letter of recommendation would dissuade a reasonable worker from engaging in protected activity, no reasonable jury could find the necessary “causal link between the two events.”577 Similarly, in Talbott v. Public Service Company of New Mexico, PNM,578 a manager of Customer Service Revenue alleged she was retaliated against when she was subjected to an investigation, placed on administrative leave, and terminated due to her persistent questions and complaints about being paid less than male managers. The employer argued that the real reason for its actions against plaintiff was due to her conduct during its investigation of an incident involving a cash discrepancy.579 The court held that the employer’s missing cash investigation, by itself, cannot constitute an adverse employment action because she had not been the target of the investigation: “although Defendant placed Plaintiff on administrative leave for allegedly interfering with the investigation, to the extent anyone was the target of the 570 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)). 571 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)). 572 Noonan v. Consol. Shoe Co., 84 F.4th 566 (4th Cir. 2023). 573 Id. at 571-72. 574 Id. at 575 (quoting Israelitt v. Enter. Servs. LLC, 78 F.4th 647, 656 (4th Cir. 2023)). 575 Id. 576 Id. at 575-76. 577 Id. at 576. (quoting Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015)). 578 Talbott v. Pub. Serv. Co. of N.M., PNM, No. 18-cv-1102 SCY/LF, 2020 WL 2043481 (D.N.M. Apr. 28, 2020). 579 Id. at *3-4. Among other things, the employer argued that the plaintiff had not been cooperative with the missing cash investigation and was disruptive with the investigation and her team. She was placed on administrative leave, given a written corrective action, and eventually terminated. Id. at *4-5.
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