Worker Fired After Unequal Pay Complaint Gets Trial

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By Jay-Anne B. Casuga

An Arkansas grain company must defend at trial retaliation claims brought by a female office worker who was fired about a week after complaining about unequal pay, a split federal appeals court ruled ( Donathan v. Oakley Grain, Inc. , 2017 BL 222464, 8th Cir., No. 15-3508, 6/28/17 ).

The ruling is important because it “spends a good bit of time discussing temporal proximity and when it matters,” Timothy A. Steadman of Holleman & Associates in Little Rock, Ark., told Bloomberg BNA June 28. Steadman is one of the attorneys representing Shana Donathan, who sued Oakley Grain Inc. for retaliation under federal and state law.

Temporal proximity refers to the timing between when an employee took a legally protected action, such as complaining about alleged pay discrimination, and when an adverse employment action, such as termination, occurs.

“We haven’t seen that fleshed out in many opinions,” Steadman said.

Donathan was laid off eight days after she sent an email complaining that she didn’t receive bonuses like male workers did at a different Oakley Grain facility. Donathan’s termination occurred even though she never received negative performance reviews and was never previously laid off during seasonal downturns.

The day after Donathan’s discharge, Oakley Grain hired a replacement who wasn’t licensed to perform some of Donathan’s duties and who forged Donathan’s signature on documents. It also rehired some of the other workers who were laid off at the same time as Donathan, but not her.

This evidence, combined with the eight-day gap between Donathan’s complaint and her layoff, is enough to revive her retaliation claims under Title VII of the 1964 Civil Rights Act, the Equal Pay Act, and Arkansas law, the U.S. Court of Appeals for the Eighth Circuit said in a 2-1 decision.

Dissent: No Protected Activity

The dissenting judge argued that the dismissal of Donathan’s claims should be upheld.

Donathan didn’t engage in protected activity because she complained about bonuses paid at a separate company facility and not the one where she primarily worked, the judge said. No reasonable employee would believe that pay differences at two separate facilities violate Title VII, he said.

The majority countered in a footnote that Oakley Grain expressly conceded in a lower federal court that Donathan’s complaint was protected activity and didn’t appeal or brief that issue.

Attorneys representing Oakley Grain didn’t immediately respond to Bloomberg BNA’s June 28 requests for comment.

Judge Michael J. Melloy wrote the majority opinion, joined by Judge Bobby Shepherd. Judge Steven Colloton dissented.

John T. Holleman of Holleman & Associates also represented Donathan. Penny C. Choate and Tasha M. Terry of Choate Law Office in Searcy, Ark., represented Oakley Grain.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Chris Opfer at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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