76 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP investigation, Plaintiff herself acknowledged that this person was [a different employee] (rather than Plaintiff).”580 Moreover, although her eventual termination indisputably qualified as an adverse action, the missing cash investigation was an intervening event that broke the causal connection between that protected conduct and her termination: “evidence of temporal proximity has minimal probative value in a retaliation case where intervening events between the employee's protected conduct and the challenged employment action provide a legitimate basis for the employer's action.”581 Finally, after a defendant presents a legitimate, non-retaliatory reason for its adverse action, the plaintiff bears the burden of demonstrating pretext. For example, in Thornhill v. WillScot Mobile Mini Holdings Corp., a female sales representative discovered she was being paid a significantly lower base salary than her male colleagues.582 Following multiple complaints about this disparity, she was terminated, purportedly as part of a reduction-in-force (a “RIF”). The court denied the defendant's motion for summary judgment on the retaliation claims, finding that despite the defendant's assertions that the plaintiff was selected for the RIF because she lacked necessary skills, a reasonable juror could conclude that defendant's RIF “had no basis in fact, or is insufficient to explain her termination,” based on multiple factors including the hiring of replacements shortly after plaintiff’s termination, alleged gender-based comments by supervisors, and other evidence of differential treatment. The court found that a reasonable jury could regard these factors as establishing that the RIF was a pretext to hide the defendant’s unlawful retaliation for the plaintiff’s complaints about gender-based salary disparities. 2. Proving An “Establishment” The federal EPA requires plaintiffs to compare their wages against other employees within the same physical place of business in which they work. According to regulations issued by the EEOC, a single establishment “refers to a distinct physical place of business” within a company; “each physically separate place of business is ordinarily considered a separate establishment” under the EPA.583 The regulations contrast this with the entire business, or “enterprise,” which “may include several separate places of business.”584 Courts presume that multiple offices are not a “single establishment” unless unusual circumstances are demonstrated.585 Not surprisingly, defining the scope of the establishment for purposes of comparing salaries and wages is a frequently contested issue in EPA litigation. For example, in Moazzaz v. Metlife, Inc.,586 a Senior Vice President and Chief Administrative Officer and Interim Global Head of Digital Strategy alleged she was paid less than male employees with similar-level positions, such as the Head of Japan Operations and Europe, Middle East and Africa Chief Financial Officer.587 The employer argued that those positions were too geographically separate from plaintiff’s position and therefore not within the same “establishment” as defined by the EPA. However, the court held that plaintiff had alleged sufficient facts at the pleading stage to allow the case to proceed based on those comparators. The court noted that “[t]he foreign comparators all appear to be members of [employer’s] leadership team,” who reported directly to plaintiff and other centralized high-level officers. The court concluded that “[i]t is thus improbable that foreign [employer] personnel, instead of, say, . . . the 580 Id. at *15. 581 Id. at *16 (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001-02 (10th Cir. 2011)). 582 Thornhill v. WillScot Mobile Mini Holdings Corp., No. 3:23-cv-00673, 2025 WL 275130, at *1 (M.D. Tenn. Jan. 23, 2025). 583 29 C.F.R. §1620.9(a). 584 Id. 585 See, e.g., Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1017 (11th Cir. 1994) (holding that evidence did not “demonstrate the level of centralization necessary to justify treating all of the company's technical writers as working at a single establishment” where “the specific salary to be offered a job applicant is determined by the local supervisor”); Kassman v. KPMG LLP, 416 F. Supp. 3d 252, 287 (S.D.N.Y. 2018) (finding that pay and promotion decisions were not sufficiently “centralized” to amount to “unusual circumstances” warranting a finding that the many offices and practice areas qualify as a single “establishment” under the EPA because “although [defendant] set generally applicable guidelines, individual pay and promotion decisions were left to the discretion of local practice area leaders,” which decisions were “reviewed by firm leadership on an aggregate basis against budget”). 586 Moazzaz v. Metlife, Inc., No. 19-cv-10531 (JPO), 2021 WL 827648 (S.D.N.Y. Mar. 4, 2021). 587 Id. at *5.
RkJQdWJsaXNoZXIy OTkwMTQ4