By: Wendy G. Adkins and Anna Williams
In Noonan v. Consolidated Shoe Company, No. 21-2328 (4th Cir. Oct. 19, 2023), the United States Court of Appeals for the Fourth Circuit stressed the need for proper comparators in wage discrimination cases. The Court also emphasized the employee’s burden to prove a causal link between alleged gender-based discrimination and adverse employment actions.
The Fourth Circuit affirmed the district court’s order granting summary judgment to the defendant-employer with respect to the plaintiff-employee’s wage discrimination and retaliation claims under Title VII and the Equal Pay Act. With respect to the former, the plaintiff argued that the only male employee in the marketing department earned the highest salary, which was the only salary in line with what the plaintiff contended was the “local industry standard.” As to the latter, the plaintiff claimed that certain acts by her employer were in retaliation for her raising her discrimination concerns, including the employer’s decision to reduce the plaintiff’s job responsibilities.
In swiftly dismissing the discrimination claims based on the local industry standard argument, the Fourth Circuit focused on the job duties of the male comparator relative to the duties of the female employees and found that not only was the male employee’s graphic designer job dissimilar to the plaintiff’s photography and marketing job, but it was also dissimilar to the jobs of all the female employees in the department. Thus, the Court declared that “[w]hat [the plaintiff] cannot show by comparing herself to one dissimilar male employee, she can’t show by comparing that same male co-worker to two other dissimilar employees either.” The Court reiterated that a faulty comparator analysis based on dissimilar job duties will never suffice.
The Fourth Circuit next turned to the retaliation claims. To establish a prima facie case of retaliation, the plaintiff must prove (1) that she engaged in a protected activity, (2) that the employer took adverse action against her, and (3) that a causal relationship existed between the protected activity and the adverse employment action. In Noonan, second and third elements were severely lacking: the employer conducted a thorough internal investigation into the plaintiff’s claims and an HR staff member supported the plaintiff throughout. Furthermore, the only evidence in the record with respect to the reduction in job responsibilities pertained to the plaintiff’s subjective preferences. The Court emphasized that this inquiry is purely an objective one and that the new job responsibilities were not objectively worse. Due to the lack of evidence supporting a causal relationship sufficient to dissuade an employee from engaging in protected activities, the Court found that the plaintiff could not prevail on her retaliation claims.
The Noonan case serves to reinforce the burden that employees must carry to succeed in their employment discrimination and retaliation claims. Claims of wage discrimination supported by the earnings of an opposite-sex comparator must be comparable with respect to job duties, responsibilities, and experience. Furthermore, a plaintiff alleging retaliation must suffer a materially adverse action because they raise concerns about sex discrimination—a burden that the plaintiff in Noonan failed to prove.
If you have any questions about this case or other labor and employment questions, feel free to reach out to Wendy Adkins or Anna Williams:
wgadkins@jacksonkelly.com or anna.williams@jacksonkelly.com