Lawyer can sue for delayed discharge

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A lawyer who claimed she was kept on the job until she finished two important trials, and then fired 10 weeks after she complained about unequal pay, can sue her employer for retaliation.

The lawyer, who worked for Virginia Attorney General Mark R. Herring’s office, had to link her termination to her earlier series of complaints that she was paid less than male lawyers who worked for the attorney general.

In June, a Richmond federal judge let Ann Marie Reardon’s Equal Pay Act claim go forward, but dismissed her retaliation claim because she had not established that “causal link” between her complaints in late 2014 and early 2015 and her termination in June 2015.

Relying on a 3^rd Circuit case involving an in-house lawyer with poor-pay complaints, Reardon amended her retaliation claim to allege the OAG had delayed her discharge to allow her to serve as lead attorney in two separate and “extensive” prosecutions.

Reardon presented a “valid reason” for the delay, according to Senior U.S. District Judge Robert E. Payne, who allowed the revived retaliation claim to go forward.

“It is logical to infer that a legal employer, having invested a significant time in one attorney’s preparation for a matter, might well delay taking adverse action against that attorney until the termination of the matter, so as to avoid the need to squander resources bringing a replacement up to speed,” the court said in Reardon v. Herringiii (VLW 016-3-403).

Matrix pay

Reardon got her law license in 1984, but had only practiced eight years when she was hired by the AG in 2010 to conduct criminal prosecutions, advise on environmental crimes and create and administer the REALITY project, an awareness campaign against prescription drug abuse.

Under matrix guidelines for lawyer classification and pay in use in 2010, Reardon was classified as an assistant attorney general III, according to her lawsuit. Her starting pay was $62,000, although the 2011 matrix put the range for AAG IIIs at $70,000 to $90,000, she alleged.

When she discovered in 2011 that her salary was below the matrix minimum for her job classification, she complained to her superiors that similarly situated males in the office were paid more. She continued to complain and received small raises until 2015. She was terminated after the 2015 matrix was updated to start AAG IIIs at $90,800. When she last complained in late 2014, she was making $65,280, Reardon alleged.

To state a retaliation claim, a plaintiff has to allege she engaged in protected activity and suffered a material adverse action causally related to that protected activity. She also has to show that the adverse action closely followed the protected activity, or offer a sufficient explanation for the employer’s delay in acting.

In Reardon’s case, eight to 10 weeks passed between her final complaint to the employer and her termination, which weakened the inference of causation, according to the court.

The 4^th U.S. Circuit Court of Appeals has indicated a plaintiff can overcome a delay by alleging “continuing retaliatory conduct and animus” or by showing antagonism “coupled with valid reasons why the adverse action was not taken immediately,” according to Payne.

Under the latter approach, “an employer steadily working toward effecting an adverse action and subsequently taking that action at the first convenient opportunity, iiicombined withiii articulated continuing animus, can meet the plausibility standard for pleading causality,” Payne said.

But other courts, including the 3^rd Circuit, have found a “valid reason” for the employer’s delay sufficient, even without an allegation of ongoing animus.

A plaintiff may allege intervening facts that “bridge the gap between the distant protected act and the delayed adverse action,” allowing the court to make a reasonable inference in the plaintiff’s favor that the protected act and adverse action were related, the judge said.

This approach is consistent with 4^th Circuit precedent that permits an inference of causation where an employer takes adverse action at the first possible opportunity, according to the court.

That’s what worked for Reardon.

She attempted to allege animus on the part of her employer by claiming her supervisor “rarely spoke to her” after Reardon’s last unequal pay complaint in early February 2015, and did not assign Reardon a “desirable exterior office with a window” despite the fact that Reardon was “next in line” when the office became available.

Reardon also claimed that, after her pay complaint, her supervisor failed to send Reardon’s section head the “customary” congratulatory email or announce the favorable verdict in a trial in which Reardon served as lead attorney.

Not enough to show “ongoing animus,” according to the court.

But Reardon’s alleged role as lead counsel in two separate, upcoming “extensive prosecutions” was a different matter. She alleged that terminating her before the conclusion of those matters “would have jeopardized the trial given the large amount of trial preparation” she had performed.

Payne said it was plausible that the delay between Reardon’s protected activity and the OAG’s adverse action was attributable to the OAG’s desire to avoid disrupting the trials Reardon was prosecuting in late 2014 and early 2015.

Her amended complaint re-established an inference of causation that allowed her retaliation claim to survive a motion to dismiss.