82 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP 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,640 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.”641 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.”642 Similarly, in Jones v. Trane US, Inc.,643 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.644 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.”645 5. Maintaining Privilege of Internal Investigations and Proactive Pay Studies The onset of litigation is often not the first time an employer hears about an employee’s equal pay allegations. Often an employee will bring their concerns to company personnel before bringing a lawsuit in court. Employers will often investigate such claims, with the goal of correcting any unjustified pay disparities they may find. Many times, however, an employer’s investigation will reveal no evidence of unlawful pay disparities. If the employee rejects the employer’s conclusion and decides to sue, the discoverability of the employer’s investigation file can become an issue in litigation. Employers that are careful to conduct their investigations under the cover of attorney-client privilege usually withhold some or all of their investigation files from production. But even in those cases, employees will sometimes argue that an employer waived privilege by putting the investigation at issue in the litigation. These issues can lead to highly contentious and fraught discovery disputes. The details of exactly how an investigation report will be used by the employer in litigation can be dispositive of an employee’s claims of waiver. For example, in Benson v. City of Lincoln,646 a female firefighter alleged a range of sex-based discrimination claims against her city employer. In short, plaintiff alleged that another firefighter refused to communicate with her and left her and her crew in a dangerous 640 Cunningham v. Advantix Digital, LLC, No. 3:19-cv-0210-G, 2020 WL 1915693 (N.D. Tex. Apr. 20, 2020). 641 Id. at *14. 642 Id. at *15. 643 Jones v. Trane US, Inc., No. 3:19-cv-0453, 2020 WL 5088211 (M.D. Tenn. Aug. 28, 2020). 644 Id. at *9. See also Black v. State of Ohio Indus. Comm’n, No. 2:21-cv-2987, 2023 WL 5935650 (S.D. Ohio Sept. 12, 2023) (holding that time-barred claims cannot be salvaged by comparing a plaintiff’s entire tenure of employment to that of her successor; one must base a comparison on the time period available for recovery: “Plaintiff argues that her pay during her first several years as Chief Legal Counsel was unequal when compared to [successor’s] pay, but she cannot save the time-barred claim simply by using her successor as the comparator”). 645 Id. at *10. 646 Benson v. City of Lincoln, 343 F.R.D. 595 (D. Neb. 2023).
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