On May 18, 2010, Law360 reported on the latest news from Kennedy v. Virginia Polytechnic Institute and State University which we previously blogged about here and here.  The plaintiffs, a group of women working in the school’s development office, originally filed suit in November of 2008, claiming that they were paid less than equally qualified men who held the same fundraising jobs.  The plaintiffs have now filed a motion to certify a class action alleging that the school engaged in a pattern and practice of discrimination against female employees in the development office, paying females on average 15.2 percent less their male counterparts.  The motion seeks to certify a class of all female fundraisers hired between 2005 and 2009, approximately 25 individuals. 

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On March 26, 2010, Law360 reported on U.S. District Court for the Western District of Virginia Judge James C. Turk’s denial of the defendant’s motion to dismiss a putative class action alleging violations of the Equal Pay Act and Title VII.  The lawsuit, Kennedy et al. v. Virginia Polytechnic Institute and State University, claims that the school consistently discriminated against female employees and applicants and paid them less than their male counterparts. 

According to the complaint, Kennedy was offered a position with a salary $20,500 lower than the starting salary of the male she was replacing.  Explaining the difference in pay, the hiring manger told Kennedy, “you are a woman, and you’re not the head of your household.”  Her would-be predecessor “had a family to support and mouths to feed at home – that is why he was paid what he was paid.”  Further justifying her lower pay, Kennedy was told that, “‘hiring a woman can be a liability’ because ‘they could get pregnant’” and need time off.  A copy of the Memorandum Opinion is available here.

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

In the first seven days of this month, the United States Court of Appeals for the Fourth Circuit reversed two lower court rulings in favor of employee-plaintiffs.  In Wesley v. Arlington County, the Court held that the district court erred in its application of the McDonnell Douglas burden shifting framework when it granted a motion for summary judgment for the employer. 

Wesley, a firefighter in Arlington County, Virginia, claimed that she was discriminated against and refused a requested promotion due to her race and sex.  For years she met all of the department’s published and formal objective requirements for promotion to Captain but she was continually passed up by the Chief during a final “roundtable,” where unpublished subjective criteria are discussed. 

The McDonnell Douglas framework requires an employee to present a prima facie case of discrimination which the employer may then rebut by showing an alternative cause for the allegedly discriminatory act.  To be victorious, an employee must then prove that the employer’s cause was merely pretextual.  To survive a motion for summary judgment, an employee need only present a prima facie case.  The Court found that the trial judge wrongly applied the second and third prongs of the McDonnell Douglas frame work when it granted a motion for summary judgment for the County. 

In the second case, Harman v. Unisys Corp., the court granted a motion to dismiss an employee’s numerous discrimination and Fair Labor Standards Act allegations.  The Court agreed with the trial judge’s dismissal of several counts and even stated that the complaint was “cumbersome and voluminous and contains numerous irrelevant allegations.”  However, the Court found that the district court should have allowed the employee an opportunity to refine her pleading and cure formal defects, even if the court doubted her ability to do so.

While these decisions are unpublished and therefore non-binding authority, they nonetheless show an increased willingness of the Court of Appeals of the Fourth Circuit to give employee-plaintiffs an opportunity to properly present their case. 

 For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On November 12, 2009, the United States District Court for the District of Columbia issued an opinion reinforcing the notion that “the Supreme Court favors an increasingly broad interpretation of statutes containing anti-retaliation provisions.”  In the case, Mansifield v. Billington, a plaintiff filed a motion for relief upon reconsideration of a previously dismissed retaliation claim brought under the Equal Pay Act. 

The plaintiff delivered a letter to her employer alleging that she was being paid less than her male counterparts.  About two weeks later, she was told her position was being eliminated.  She filed a complaint alleging gender discrimination under Title VII and retaliation under the EPA.  Her retaliation claim was dismissed in June 2006 and her Title VII claim in September 2008.  In October 2009, she filed her motion on the basis that evolving federal case law and recent Supreme Court decisions support her position.  The Court granted the motion, citing the “changing trend in the interpretation of federal laws prohibiting retaliation in the work place.”  The Court also acknowledged that retaliation is another form of intentional discrimination.

For information on The Employment Law Group® law firm’s Equal Pay Act Practice, click here.

The Equal Employment Opportunity Commission (EEOC) has published a document titled, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to provide guidance for employees on waivers executed as part of their severance agreements.  The document offers basic information about severance agreements, including legal requirements and necessary provisions for a valid severance agreement.  Key points include:

1. Consideration – A severance agreement must be supported by consideration, i.e., a lump sum payment of a percentage of an employee’s annual salary.
2. Validity— A severance agreement is valid only where an employee knowingly and voluntarily consents to the waiver.
3. EEOC Charges – Regardless of the broad language used in a waiver to describe the claims that an employee is releasing, an employee can still file a charge with the EEOC for discrimination.
4. Other Rights – A severance agreement may not limit an employee’s right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA.  Any provision in a waiver that attempts to waive these rights is invalid and unenforceable.

The EEOC also provides a specific discussion on waivers of age discrimination claims to address recent developments under the Age Discrimination in Employment Act (ADEA), such as the Supreme Court’s controversial decision in Gross v. FBL Financial Services, Inc.

For information on The Employment Law Group® law firm’s Employment Discrimination Law Practice go to http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.

Law360 reports that a federal judge has refused to dismiss a retaliation claim against Virginia Tech for violation of the Equal Pay Act (“EPA”).  According to the article, Shana Kennedy filed a complaint against Virginia Tech, alleging that the school discriminated against her and other female employees by paying them less than similarly-situated male employees at the school.  Kennedy also alleged that the school retaliated against her when she complained about the disparate pay and her supervisor’s discriminatory comments.  The school moved to dismiss the retaliation claim from the suit, arguing that Kennedy’s activity was not protected under the EPA because she only complained about the gender discrimination internally.  Judge Turk adopted the school’s interpretation, concluding that internal complaints with an agency are not protected.  Despite this controversial ruling, the judge still found for Kennedy on the grounds that Kennedy had submitted formal complaints about the retaliation to outside authority.  According to the judge, Kennedy had “sufficiently alleged that Virginia Tech took adverse actions against her” and therefore had a valid claim for retaliation.  The judge’s ruling in this case is significant because it reaffirms the majority position that a claim filed with a state agency or the Equal Employment Opportunity Commission is sufficient “filing” to constitute protected activity. 
 

The article is “Virginia Tech Must Face Retaliation Claim,” and the case name is Kennedy v. Virginia Polytechnic Institute & State University.
 
Attorneys at The Employment Law Group® law firm are representing Ms. Kennedy.  For more information about the firm’s Equal Pay Act Practice, click here.

In an article titled, “NTSB Found Liable for $466M in Equal Pay Lawsuit,” the North Country Gazette reports about The Employment Law Group® law firm’s victory on behalf of its client, Ms. Murtagh Cooke in a case under the Equal Pay Act.   The article describes how the National Transportation Safety Board discriminated against the former female director by paying her less than similarly-situated males.  After reviewing the facts of Ms. Cooke’s case of gender based discrimination in violation of the Equal Pay Act, the Court of Federal Claims not only awarded Ms. Murtagh Cooke her lost back pay and retirement benefits, but also extended her damages back three years.  To read the full opinion in Cooke v. United States, click here.

When The Employment Law Group®law firm agreed to represent Marjorie Murtagh Cooke in her claim against the National Transportation Safety Board (”NTSB”) for violation of the Equal Pay Act, they didn’t know that she was a pioneer.  Ms. Murtagh Cooke was the first woman to attend a maritime college and to date is the only female to serve as modal office director of the NTSB.  In 2004, it became apparent to Ms. Murtagh Cooke that her pay was less than all other modal office directors, all of whom were men.  However, Ms. Murtagh Cooke’s numerous complaints to management went unanswered.  Finding a willful violation and a lack of good faith, Judge Wheeler concluded that, ”the NTSB’s conduct in ignoring Ms. Murtagh Cooke’s concerns about her pay differential demonstrated a reckless disregard of the Equal Pay Act’s requirements” and that the NTSB acted “deliberately and willfully in preventing Ms. Murtagh Cooke from receiving fair consideration” for the Senior Executive Service position.  Thus, the court not only awarded Ms. Murtagh Cooke her lost back pay and lost retirement benefits but also extended her damages back three years and doubled the award.  The Employment Law Group®  law firm is thankful for the opportunity to have represented Ms. Murtagh Cooke in this landmark case.  The Order is available here.