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11 PJI 1.2 | Third Circuit (US)
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11 PJI 1.2 | EPA | RETALIATION

[Plaintiff] claims that [defendant] discriminated against her because she opposed a practice made unlawful by the Equal Pay Act.

To prevail on this claim, [plaintiff] must prove all of the following elements by a preponderance of the evidence:

First: [Plaintiff] [filed a complaint] [instituted a proceeding] [made an informal complaint to her employer2] [testified/agreed to testify in a proceeding] asserting rights under the Equal Pay Act.

Second: [Plaintiff] was subjected to a materially adverse action at the time, or after, the protected conduct took place.

Third: There was a causal connection between [describe challenged activity] and [plaintiff’s] [describe plaintiff’s protected activity].


Concerning the first element, [plaintiff] need not prove the merits of any Equal Pay Act claim, but only that she was acting under a reasonable,3 good faith belief that [her] [or someone else’s] rights under the Equal Pay Act were violated.

Concerning the second element, the term “materially adverse” means that [plaintiff] must show [describe alleged retaliatory activity] was serious enough that it well might have discouraged a reasonable worker from [describe plaintiff’s protected activity]. [The activity need not be related to the workplace or to [plaintiff’s] employment.]

Concerning the third element, that of causal connection, that connection may be shown in many ways. For example, you may or may not find that there is a sufficient connection through timing, that is [defendant’s] action followed shortly after [defendant] became aware of [plaintiff’s] [describe activity]. Causation is, however, not necessarily ruled out by a more extended passage of time. Causation may or may not be proven by antagonism shown toward [plaintiff] or a change in demeanor toward [plaintiff].

Ultimately, you must decide whether [plaintiff’s] [protected activity] had a determinative effect on [describe alleged retaliatory activity]. “Determinative effect” means that if not for [plaintiff's] [protected activity], [describe alleged retaliatory activity] would not have occurred.

COMMENT 29 U.S.C. § 215(a)(3), a provision of the Fair Labor Standards Act, establishes a cause of action for retaliation against employees who assert rights under the Equal Pay Act or the FLSA. Section 215(a)(3) provides that it is unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding ...”

Protected Activity

The literal terms of the statute might be read to limit protected conduct to that involved in a formal proceeding.4 However, the Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), held that “the statutory term ‘filed any complaint’ includes oral as well as written complaints within its scope,” id. at 4. “To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.” Id. at 14.

The Kasten Court declined to decide whether the anti-retaliation provision encompasses complaints made to a private employer rather than to the government. See id. at 17 (applying the Court’s usual practice of declining to “consider a separate legal question not raised in the certiorari briefs”). The Third Circuit has not yet decided that question either.5 It is worth noting that several district courts within the Circuit, as well as most of the other Courts of Appeal, have held that Section 215(a)(3) should be construed broadly. In a pre-Kasten case, Dougherty v. Ciber, Inc., 2005 WL 2030473 (M.D. Pa. 2005), a district court provided an analysis of the statute and the case law that still seems relevant:
The United States Court of Appeals for the Third Circuit has not directly addressed the issue of whether making an informal complaint to an employer constitutes a protected activity under section 215(a)(3). Although some courts have narrowly construed the language of section 215(a)(3), many circuits give effect to the remedial nature of the FLSA by affording broad employee protection through a liberal interpretation of section 215(a)(3). See, e.g., Valerio v. Putnam Assoc., Inc., 173 F.3d 35, 42-43 (1st Cir.1999) (finding that "filed any complaint" encompasses more than filings with a government agency such that filing of a complaint with an employer may give rise to a retaliation claim); Lambert v. Ackerly, 180 F.3d 997, 1005 (9th Cir.1999) (holding that "filed any complaint" "extends to employees who complain to their employer about an alleged violation of the Act"); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir.1992) (holding that plaintiff's oral complaint to her employer was sufficient to trigger the protection of § 215(a)(3)); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (holding that § 215(a)(3) "also applies to the unofficial assertion rights through complaints at work"); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1975) (concluding that even though the aggrieved parties did not file a formal complaint with a government agency, "the unofficial complaints expressed by the women to their employer about unequal pay constitute an assertion of rights protected under the [FLSA]").

Similarly, the United States Court of Appeals for the Third Circuit has instructed that the language of the anti-retaliation provision should be construed liberally. Brock v. Richardson, 812 F.2d 121, 123-24 (3d Cir.1987) (holding that the remedial provisions of the Fair Labor Standards Act "must not be interpreted or applied in a narrow, grudging manner")). In Brock, an employee was discharged because the employer mistakenly believed that the employee filed a complaint with the Department of Labor. The Third Circuit concluded that the discharge created the "same atmosphere of intimidation as does the discharge of an employee who did in fact complain of FLSA violations." Id. at 125; see also Fogarty v. Boles, 121 F.3d 886, 891 (3d Cir.1997) (holding that because the FLSA is aimed at eliminating an atmosphere of intimidation, the discharge of employees under the mistaken impression that they had participated in protected statutory activity is enough to establish a violation of the Act). The Third Circuit noted that courts have looked to the "animating spirit" of the anti-retaliation provision in "applying it to activities that might have not been explicitly covered by the language" of section 215(a)(3). Brock, 812 F.3d at 124. Further, the Court reasoned that the FLSA was designed to encourage employees to report suspected violations and therefore "the key to construing the anti-retaliation provision is the need to prevent employees' fear of economic retaliation for voicing grievances about substandard conditions." Id.

In applying the interpretation announced in Brock, several district courts within the Third Circuit have held that informal complaints to employers are protected activities under section 215(a)(3). See, e.g., Chennisi v. Communications Constr. Group, 2005 WL 387594, at *2 (E.D. Pa. Feb.17, 2005); Coyle v. Madden, No. 03-4433, 2003 WL 22999222 (E.D. Pa. Dec.17, 2003). In concluding that an internal complaint to an employer regarding a violation of the FLSA is a protected activity under § 215(a)(3), one court in the Eastern District reasoned that in order to achieve the "remedial and humanitarian" purpose of the FLSA, it is necessary to make an internal complaint a protected activity. Chennisi, 2005 WL 387594, at *2. Under a narrower construction, informal settlement of complaints would be discouraged, as an employee would be required to take legal action in order to preserve her FLSA rights. Accordingly, this Court agrees that the Third Circuit's liberal interpretation of the phrase "filed any complaint" affords employees who make informal complaints protection under section 215(a)(3).
Accordingly, the instruction lists informal complaints to the employer as one of the activities protected from retaliation by the employer.

In accord with the retaliation instructions in other Chapters (see, e.g., Instruction 5.1.7 concerning Title VII retaliation claims), Instruction 11.1.2 requires a “reasonable, good faith belief” that an Equal Pay Act violation occurred. The statute itself does not explicitly require reasonableness and good faith. Tracking the approach taken in instructions from other circuits concerning retaliation under various employment discrimination statutes, Instruction 11.1.2 directs the jury to determine both the good faith and the reasonableness of the plaintiff’s belief that an Equal Pay Act violation occurred. See Fifth Circuit Committee Note to Instruction 11.6.1 (Title VII retaliation); Seventh Circuit Committee Comment to Instruction 3.02 (retaliation instruction for use in Title VII, § 1981, and ADEA cases); Eleventh Circuit Instruction 4.21 (Section 1981 retaliation); Eleventh Circuit Instruction 4.22 (retaliation claims under Title VII, ADEA, ADA, and FLSA); see also Eighth Circuit Instruction 10.41 (retaliation claim (regarding opposition to harassment or discrimination) under Title VII and other federal discrimination laws; instruction uses phrase “reasonably believed”); id. Notes on Use, Note 5 (using phrase “reasonably and in good faith believe”); compare Ninth Circuit Instruction & Comment 10.3 (Title VII retaliation) (discussing reasonableness requirement in the comment but not in the model instruction). In cases where the protected nature of the plaintiff’s activity is not in dispute, this portion of the instruction can be modified and the court can simply instruct the jury that specified actions by the plaintiff constituted protected activity.

Standard for Actionable Retaliation

The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 68 (2006), held that a cause of action for retaliation under Title VII lies whenever the employer responds to protected activity in such a way “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (citations omitted). The Court elaborated on this standard in the following passage:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that "courts have held that personality conflicts at work that generate antipathy" and "'snubbing' by supervisors and co-workers" are not actionable under § 704(a)). The anti-retaliation provision seeks to prevent employer interference with "unfettered access" to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from complaining to the EEOC," the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual § 8, p. 8-13.

We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g., [Pennsylvania State Police v.] Suders, 542 U.S., at 141, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (hostile work environment doctrine).

We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.... A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an act that would be immaterial in some situations is material in others.

Finally, we note that... the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.
548 U.S. at 68-70 (some citations omitted).

The anti-retaliation provision of Title VII, construed by the Court in White, is very similar to the Equal Pay Act provision on retaliation, supra. This instruction therefore follows the guidelines of the Supreme Court’s decision in White.6

No Requirement That Retaliation Be Job-Related To Be Actionable

The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 64 (2006), held that retaliation need not be job-related to be actionable under Title VII. In doing so, the Court rejected authority from the Third Circuit (and others) requiring that the plaintiff suffer an adverse employment action in order to recover for retaliation. The Court distinguished Title VII’s retaliation provision from its basic anti-discrimination provision, which does require an adverse employment action. The Court noted that unlike the basic anti-discrimination provision, which refers to conditions of employment, the anti-retaliation provision is broadly worded to prohibit any discrimination by an employer in response to protected activity.

The Equal Pay Act anti-retaliation provision is very similar to the Title VII provision construed in White. Moreover, it not only bars “discharge” but broadly prohibits “any other... discriminat[ion].” Accordingly, this instruction contains bracketed material to cover a plaintiff’s claim for retaliation that is not job-related. The instruction does not follow pre-White Third Circuit authority which required the plaintiff in a retaliation claim to prove that she suffered an adverse employment action. See, e.g., Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995)(requiring the plaintiff in a retaliation case to prove among other things that “the employer took an adverse employment action against her”). For further discussion of White, see the Comment to Instruction 5.1.7.

Damages

It is important to note that the damages available for retaliation differ from the damages available for a violation of the Equal Pay Act itself. Under the Equal Pay Act, the plaintiff is entitled to the pay that she should have received for equal work, with that figure doubled as liquidated damages. See Instructions 11.3.1-11.3.2. A cause of action for retaliation does not seek equal pay recovery per se; indeed a person may engage in protected activity by complaining about wage discrimination even if that person is not the victim of the wage discrimination. The damages asserted in a retaliation claim are those suffered by the plaintiff from the retaliatory act. Thus, the damages in a retaliation cause of action are the same as those provided in any other action for damages, e.g., pain and suffering, lost wages, etc. See Instruction 11.3.7.

Determinative Effect

Instruction 11.1.2 requires the plaintiff to show that the plaintiff’s protected activity had a “determinative effect” on the allegedly retaliatory activity. This language is similar to that provided in Instruction 5.1.7 for Title VII retaliation claims. Prior to 2013, courts had recognized a distinction between pretext and mixed-motive cases in the context of Title VII retaliation claims. In 2013, however, the Supreme Court held that the mixed-motive proof framework is unavailable for Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). The Nassar Court reasoned that Congress legislated against a background tort principle of “but for” causation, see Nassar, 133 S. Ct. at 2523; that Title VII’s retaliation provision uses the word “because,” which is incompatible with a mixed-motive test, see id. at 2528; that Congress would have structured the statutory framework differently had it wished to encompass Title VII retaliation claims among those eligible for the statutory mixed-motive test set forth in 42 U.S.C. '§ 2000e-2(m) and 2000e 5(g)(2)(B), see id. at 2529; that policy considerations support a restrictive approach to the standards of proof for retaliation claims, see id. at 2531-32; and that the “careful balance” that Congress set in the Civil Rights Act of 1991 forecloses the use of the Price Waterhouse mixed-motive test for Title VII retaliation claims, id. at 2534. See also Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S. Ct. 1009, 1014 (2020) (rejecting mixed motive framework for claims under Section 1981; the Court viewed but-for causation as a default principle for tort suits, and it saw no reason in the text of the statute to depart from that “‘background’ rule.”).

The Court of Appeals has not applied a mixed-motive framework to Equal Pay Act retaliation claims, and, in light of Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009),7 it is unclear whether such a framework can appropriately apply to such claims.8

(Last Updated October 2018)

Footnotes

2 See the Comment to this instruction for a discussion of whether complaints to a private employer are protected activity under the Equal Pay Act.
3 See the Comment for a discussion of the allocation of responsibility for determining the reasonableness of the plaintiff’s belief.
4 Such a reading would contrast with the retaliation provisions of other acts (such as Title VII and the ADEA) which protect any act in opposition to prohibited practices under the respective statutes, including informal complaints to an employer.
5 Gillispie v. RegionalCare Hosp. Partners Inc, 892 F.3d 585 (3d Cir. 2018), which interpreted the whistleblower-protection provision in the Emergency Medical Treatment and Active Labor Act (“EMTALA”), might shed some indirect light on the question whether protected conduct under the FLSA’s anti-retaliation provision includes communications made only to the employer and not to an outside authority. In Gillispie, the court ruled that the EMTALA provision does extend to purely internal reports, both because the EMTALA provision contains no reference to “official” reports and because a contrary ruling would incentivize employers to fire employees before they had an opportunity to take their report to an outside authority. Gillispie, 892 F.3d at 596-97.
6 The Committee has not attempted to determine whether Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) – in which the Supreme Court recognized a right of action under Title VII for certain third parties who engaged in no protected activity but were subjected to reprisals based on the protected activities of another employee – provides authority for recognition of similar third-party retaliation claims under the Equal Pay Act. For a discussion of Thompson, see Comment 5.1.7.
7 In Gross, the Supreme Court rejected the use of a mixed-motive framework for claims under the Age Discrimination in Employment Act (ADEA). The Gross Court reasoned that it had never held that the mixed-motive framework set by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), applied to ADEA claims; that the ADEA’s reference to discrimination “because of” age indicated that but-for causation is the appropriate test; and that this interpretation was bolstered by the fact that when Congress in 1991 provided the statutory mixed-motive framework codified at 42 U.S.C. § 2000e-5(g)(2)(B), that provision was not drafted so as to cover ADEA claims.
8 Cf. DiFiore v. CSL Behring, LLC, 879 F.3d 71, 78 (3d Cir. 2018) (holding that a mixed-motive framework is unavailable for False Claims Act retaliation claims because “the language of the FCA anti-retaliation provision uses the same ‘because of’ language that compelled the Supreme Court to require ‘but-for’ causation in Nassar and Gross”).

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