Labor & Employment Law Daily Wrap Up, RETALIATION—W.D. Tenn.: Chief People Officer’s complaint to law firm CEO about pay disparity was protected activity, (Apr 17, 2025)

By Robert Margolis, J.D.

Jury could find CPO’s complaint met standard for protected activity under Title VII that she had reasonable belief of legal violation, as well as standard under the FLSA and EPA that she was taking position adverse to the firm.

A jury could reasonably find that when a law firm’s Chief People Officer verbally complained to the CEO about what she considered a $20,000 disparity in pay between comparable male and female associates at the firm, that complaint constituted protected activity under Title VII, the FLSA, and the Equal Pay Act, a federal district court in Tennessee has held. The court denied the law firm’s motion for summary judgment on the CPO’s claims for retaliatory discharge under those three statutes, also determining that whether the employer’s proffered non-discriminatory reason for her termination was pretextual was a factual issue to be resolved by a jury (Mosby v. Reaves Law Firm PLLC, No. 2:23-cv-02099-SHM-tmp (W.D. Tenn. Apr. 15, 2025)).

Perceived pay disparity. After amassing 27 years of experience as an attorney practicing labor and employment laws, the employee was hired by the Reaves Law Firm to serve as its Chief People Officer (“CPO”). Among her responsibilities would be “ensuring compliance with all state and federal laws as they related to employees,” including laws governing compensation and wages.

Along with the law firm’s former managing attorney, the employee sat in on an interview with a prospective male associate. When they brought the candidate to meet the firm’s CEO, he offered the candidate an $85,000 starting salary. The employee alleges she then spoke privately with the former managing attorney, who told her a female associate she supervised and who had more experience than the male candidate was being paid only $65,000. The employee then went to the CEO, told him he acted unprofessionally and questioned why he was offering the male candidate $85,000 when the female associate was making $65,000. He responded he did not care about the disparity and that the employee was being disloyal to him.

The employee then raised a second issue with the CEO, that he was not paying a female executive assistant what she was supposed to be making. Again, the CEO responded with assertions that the employee was being disloyal, and was “just trying to set me up for a lawsuit.” Though the parties dispute some of the details of these conversations, the CEO did admit during deposition testimony that he questioned the employee’s loyalty.

Demotion and termination. Shortly after these conversations, the employee was demoted from CPO to “intake specialist” and ordered to begin a “rotation plan to learn how the Firm operated.” In addition, the CEO told the employee to prepare a “transition document” outlining what she had been working on as CPO prior to the demotion. While he told other firm executives that the employee had a deadline for finishing that document roughly a week after he assigned it, he did not communicate the deadline to her. She did not submit the document by the CEO’s deadline. Further, the parties dispute whether the employee reported for her rotation; the employee claims she reported, watched the firm’s training videos, and continued to report until her termination, all of which the firm denies.

The firm terminated the employee shortly thereafter for “insubordination,” referencing the alleged missed deadline for the transition document and alleged failure to report for rotation training.

The employee sued for unlawful retaliation under Title VII, the FLSA, and the EPA. In the McDonnell Douglas burden shifting framework applicable to all claims, the only issues in dispute were whether the employee engaged in protected activity and whether the proffered reasons for her termination were pretext.

Good faith belief? For an employee’s complaint to constitute protected activity under Title VII, the employee must have a reasonable and good faith belief that the conduct complained of was unlawful. The law firm contended the employee’s complaint to the firm’s CEO was not based on an objectively reasonable and subjectively good faith belief that the firm was violating Title VII by underpaying a female associate. In particular, the law firm said the employee lacked firsthand knowledge of the underlying facts and she did not investigate the complaint. The court did not agree.

First, the court pointed out that it was not unreasonable as a matter of law for the employee to rely on a statement by the firm’s then-managing partner, who supervised the female associate, as to the associate’s salary. The employee need not have sought out and reviewed the associate’s paystub to verify. Further, the conversation with the managing partner could also be deemed investigative. The employee learned during that conversation that the female associate was more experienced than the male candidate, and while the male would be forced to relocate from a different city to join the firm (one of the CEO’s justifications for the higher pay offer), she also learned that the female associate had relocated from another city when she joined the firm.

And even though the complaint took the form of a conversation, under Sixth Circuit law a complaint need not have “absolute formality, clarity, or precision” to be protected. Under these circumstances, a reasonable jury could find that the employee engaged in protected activity.

As to pretext, while the alleged failure to meet the deadline for turning in the transition document and alleged failure to report for rotation training met the test for legitimate non-retaliatory reasons for termination, the above-described evidence that the deadline was not communicated to the employee and that she did report for rotation training sufficed to raise questions of fact for a jury to resolve. Resolution of those questions hinged largely on an assessment of the credibility of the witnesses, a task for the jury.

FLSA, EPA. At issue on the question of whether the employee’s conduct was protected activity for purposes of the FLSA and EPA was whether the employee had stepped outside her role as the firm’s CPO in her conversations with the firm CEO about payment disparities. While part of the employee’s responsibilities as CPO were to ensure the firm was complying with compensation and wage laws, such that she was subject to a heightened standard for FLSA protected activity under Sixth Circuit law, the court found sufficient evidence for a jury to determine that she met that standard. In particular, the court cited the inferences a jury could draw from the employee’s words and tone, and the CEO’s reaction that he saw her as being disloyal to him and the firm and was setting him up for a lawsuit. A jury could find that the CEO saw the employee as acting outside her role for the firm by doing so.

Finally, the court’s pretext analysis for the FLSA and EPA claims was the same as for the Title VII claim as described above.

The case is No. 2:23-cv-02099-SHM-tmp.

Judge: Mays, S.

Attorneys: Janelle Crandall Osowski (Donati Law Firm) for Andrea Jaye Mosby. Jonathan C. Hancock (Baker, Donelson, Bearman, Caldwell & Berkowitz) for Reaves Law Firm PLLC.

Companies: Reaves Law Firm PLLC

Cases: Retaliation PayDiscrimination SexDiscrimination Discrimination Discharge TennesseeNews