TABLE OF CONTENTS

I. A Title VII pay discrimination plaintiff need not establish an EPA prima facie case or demonstrate “equal pay for equal work.”. 12

II. The district court erred by rejecting Markou’s pregnancy discrimination claim at the prima facie stage. 21

III. The district court erred by rejecting Markou’s retaliation claims at the prima facie stage. 23

CONCLUSION.. 29

CERTIFICATE OF COMPLIANCE.....................................................................................

CERTIFICATE OF SERVICE................................................................................................

TABLE OF AUTHORITIES

Cases

Aldrich v. Randolph Cent. Sch. Dist.,

963 F.2d 520 (2d Cir. 1992).................................................................................15, 19

Amin v. Akzo Nobel Chems., Inc.,

282 F. App’x 958 (2d Cir. 2008)................................................................................25

Asmo v. Keane, Inc.,

471 F.3d 588 (6th Cir. 2006)......................................................................................22

Belfi v. Prendergast,

191 F.3d 129 (2d Cir. 1999)....................................................................11, 13, 15, 17

Brinkley-Obu v. Hughes Training, Inc.,

36 F.3d 336 (4th Cir. 1994)........................................................................................19

County of Washington v. Gunther,

452 U.S. 161 (1981)..................................................................................13, 14, 17, 18

Crawford v. Metro. Gov. of Nashville & Davidson Cty.,

555 U.S. 271 (2009).....................................................................................................26

EEOC v. Port Auth. of N.Y. & N.J.,

768 F.3d 247 (2d Cir. 2014).................................................................................14, 16

Frederick v. United Bhd. of Carpenters,

665 F. App’x 31 (2d Cir. 2016)..................................................................................16

Frederick v. United Bhd. of Carpenters & Joiners of Am.,

No. 12 Civ. 2387, 2015 WL 12964662 (E.D.N.Y. Mar. 26, 2015).......................16

Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp.,

136 F.3d 276 (2d Cir. 1998)...........................................................................24, 25, 27

Gerbush v. Hunt Real Estate Corp.,

No. 00-7274, 2000 WL 1689764 (2d Cir. Nov. 9, 2000).......................................15

Graham v. Long Island R.R.,

230 F.3d 34 (2d Cir. 2000)..........................................................................................21

Greathouse v. JHS Sec. Inc.,

784 F.3d 105 (2d Cir. 2015).................................................................................23, 27

Jaafari v. Bank of Tokyo-Mitsubushi UFJ, Ltd.,

509 F. App’x 68 (2d Cir. 2013)..................................................................................15

Jamilik v. Yale Univ.,

362 F. App’x 148 (2d Cir. 2009)................................................................................15

Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs,

716 F.3d 10 (2d Cir. 2013)..........................................................................................24

Kwan v. Andalex Grp. LLC,

737 F.3d 834 (2d Cir. 2013)...........................................................................12, 22, 24

Laffey v. Nw. Airlines, Inc.,

567 F.2d 429 (D.C. Cir. 1976)....................................................................................18

Lawless v. TWC Media Sols., Inc.,

487 F. App’x 613 (2d Cir. 2012)................................................................................15

Littlejohn v. City of New York,

795 F.3d 297 (2d Cir. 2015)...........................................................................22, 23, 27

Martinez v. Davis Polk & Wardwell LLP,

713 F. App’x 53 (2d Cir. 2017)............................................................................16, 17

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)......................................................................................................9

McGuinness v. Lincoln Hall,

263 F.3d 49 (2d Cir. 2001).............................................................................14, 15, 21

Megivern v. Glacier Hills, Inc.,

519 F. App’x 385 (6th Cir. 2013)...............................................................................22

Miranda v. B & B Cash Grocery Store, Inc.,

975 F.2d 1518 (11th Cir. 1992)..................................................................................19

St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 (1993).....................................................................................................20

Summa v. Hofstra Univ.,

708 F.3d 115 (2d Cir. 2013)........................................................................................23

Sumner v. U.S. Postal Serv.,

899 F.2d 203 (2d Cir.1990).........................................................................................27

Talwar v. Staten Island Univ. Hosp.,

610 F. App’x 28 (2d Cir. 2015)..................................................................................28

Talwar v. Staten Island Univ. Hosp.,

No. 12-CV-33, 2014 WL 5784626 (E.D.N.Y. Mar. 31, 2014).......................27, 28

Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981).....................................................................................................20

Tomka v. Seiler Corp.,

66 F.3d 1295 (2d Cir. 1995)......................................................................9, 17, 18, 19

Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72 (2d Cir. 2015)..........................................................................................21

Statutes

Equal Pay Act, 29 U.S.C. § 206(d)(1).............................................................................passim

Fair Labor Standards Act, 29 U.S.C. § 215(a)(3)................................................................23

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq....................................1

42 U.S.C. § 2000e-2(a)(1).....................................................................................11, 13

42 U.S.C. § 2000e-3(a).................................................................................................23

Regulation

29 C.F.R. § 1620.27(a).............................................................................................................14

Rule

Fed. R. App. P. 29(b)...............................................................................................................1

Other

Br. for Def.-Appellee, Amin v. Akzo Nobel Chems., Inc.,

282 F. App’x 958 (2d Cir. 2008)

(No. 06-5166-cv), 2007 WL 6512836.......................................................................25

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (Commission) is charged by Congress with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”), and other federal employment discrimination statutes. This appeal raises questions that affect the Commission’s Title VII and EPA enforcement efforts: (1) the proper standard for Title VII pay discrimination claims, as compared to EPA pay discrimination claims and (2) what evidence is sufficient to satisfy a prima facie case for pregnancy discrimination and retaliation under Title VII. The Commission offers its views as amicus curiae. Fed. R. App. P. 29(b).

STATEMENT OF THE ISSUES[1]

I. Whether the district court misapplied the relevant standard in analyzing Danielle Markou’s Title VII pay discrimination claim.[2]

II. Whether the district court erred when it determined that Markou failed to establish a prima facie case of pregnancy discrimination under Title VII.

III. Whether the district court erroneously concluded that Markou failed to establish a prima facie case of retaliation under Title VII.

STATEMENT OF THE CASE

I. Factual Background

Plaintiff-Appellant Danielle Markou began working at Systemax as Director of Risk Management in 2008. A.121. Markou’s starting base salary was $140,000 plus a target performance bonus of 20% of her salary. A.82; A.121. In January 2011, Markou was promoted to Vice President of Risk Management and her base salary increased from $148,512 to $155,000 (a $6,488 increase). A.121; A.126; A.421; A.424.

In March 2011, soon after her promotion, Markou asked her supervisor, then-CFO Lawrence Reinhold, when the pay increase associated with her promotion would take effect. A.422-23; A.644. Reinhold laughed and replied that she “already received” a pay increase with her promotion. A.423. Markou was surprised because the pay increase was so “de minimis” she “didn’t even notice it in [her] paycheck.” Id. She told Reinhold she was “concerned that [she] wasn’t paid relative to peers” and “wanted to be treated similarly to the males.” Id. “[T]here wasn’t any follow-up meeting” after Markou met with Reinhold, and Markou complained to CEO Richard Leeds about her pay. A.423-24; A.638. After she spoke to Leeds, Systemax increased Markou’s base salary to $175,000 effective August 15, 2011. A.128; A.282; A.424. Systemax increased Markou’s base salary to $185,000 for 2012. A.282.

Despite these increases, Markou’s base salary was considerably less than the base salaries of several male department heads, including Benjamin White, Vice President of Internal Audit ($240,000 in 2011 and $253,200 in 2012); Thomas Axmacher, Vice President and Comptroller ($285,000 and $297,600); Robert Baker, European Controller ($230,000 and $246,400); Alan Schaffer, Director of Facilities ($275,000 and $278,600); and Curt Rush, General Counsel (until May 2012) ($240,000 and $251,200). A.282; A.294; A.302; A.308; A.316; A.319.

White, Axmacher, Baker, and Rush (when he was General Counsel) reported to Reinhold, as did Markou. A.124; A.643-44. Although Markou was not the only woman who reported to Reinhold—for example, Human Resources Director Natasha Ward was also one of Reinhold’s direct reports—Systemax categorized Markou with White, Axmacher, Baker, and Schaffer in several respects. A.124. For analytical purposes, Systemax grouped together similarly situated employees at the same level; White, Axmacher, Baker, Schaffer, and Rush were all in the same grouping as Markou. A.664. Systemax considered Markou, White, Axmacher, Schaffer, and Rush members of Systemax’s Executive Team in the Corporate Business Unit, headed by Reinhold. A.674. Markou was the only woman in that group. Id. She was also the only woman on Systemax’s “Management Team,” which included White and Axmacher, and which Ward described as the company’s “senior leaders.” A.637-38; A.651-52.

In December 2012, Markou received a bonus that she characterized as “the lowest of [her] career.” A.442-43. On January 4, 2013, in reaction to her bonus, Markou sent Reinhold an email stating that she “hope[d] [her] achievements put [her] on par with [her] peer group on the management team and that [her] pay is commensurate.” A.442-43; A.780-81. On January 26, Markou reiterated her concerns about her compensation, resending the January 4 email to Reinhold and adding that she was “disappointed by the numbers and fe[lt] that [she] should get [her] full target bonus and be compensated relative to [her] peers.” A.780. Reinhold told Markou she was the only one of his direct reports who earned more in 2012 than 2011, but Markou sent Reinhold a follow-up email explaining that she reviewed her compensation history and confirmed that she “made less” overall in 2012. A.447-48; A.520.

Leeds recalled that Markou informally “complained numerous, numerous times” to him about her compensation, and that he directed Markou to speak with Reinhold. A.389. Then, on March 29, 2013, Markou emailed Leeds complaining about her compensation and other areas of concern:

I have mentioned [my] concerns, but do not believe they are being adequately addressed. Relative to my peer group as an executive, I would like to be an “Executive Officer” under the SEC and paid similar to my peers in NY—Tom [Axmacher], Ben [White], Curt [Rush], etc. ... More than the title, I would like my pay to be more comparable.

A.834.

After receiving a forwarded copy of the March 29 email, Reinhold called Markou into his office for a meeting on April 9. A.479; A.833. Markou recalled that Reinhold “was so irate at me that he was shaking and he pointed to me and he said ‘it was so fucking inappropriate that you went over my head to Leeds and if I didn’t have the weekend, you wouldn’t be sitting here.’” A.479.

Reinhold informed Markou that she would now report to General Counsel Eric Lerner (who reported to Reinhold). A.124; A.479-80. Markou believed this new reporting structure “basically demoted” her. A.480. She recalled that Reinhold said, “if I left the office for any reason, even to get a coffee, I had to take vacation time.” A.480. In a follow-up email, Reinhold again directed Markou “not [to] leave the office during office hours for personal reasons,” stating Markou must “submit a request for PTO” if she “need[s] to be gone.” A.845. Markou believed that Systemax did not impose this requirement on “any male peer in the company.” A.480. For example, although Lerner and Reinhold admonished Rush for “repeated absence[s] in the afternoon for working out or whatever you do,” Systemax did not take disciplinary action against Rush for his absences. A.829.

From April 19 to April 24, Markou traveled to Los Angeles, California, to attend a risk management conference, which started Sunday, April 21. A.513; A.868-70. Markou was originally scheduled to depart the evening of Saturday, April 20, but on March 26 she rescheduled her flight to depart the evening of Friday, April 19. A.868-74. Reinhold approved both Markou’s original and revised itineraries in Systemax’s travel management system. A.491-93. Reinhold had previously approved itineraries where Markou departed at least a day early, including travel to California and to a prior risk management conference. A.491.

Markou submitted an expense report including lodging and rental car charges for April 19 and 20. A.202. On May 21, Reinhold directed Markou to “revise [her] expense [report] to allocate hotel and rental car charges between personal (2 days) and business as [the conference] did not start until Sunday[.]” A.174. Markou responded that she would “prefer not to have [the first two days] segregated into a personal charge” because “[she] was going to try to meet with people on Saturday night (brokers, carriers) ... [but later] realized many of [her] contacts flew in on Sat[urday] night or Sunday so it didn’t work out.” A.173-74. Markou explained that she attempted to reschedule her flight after she was unable to schedule meetings but could find no available flights. A.173.

Reinhold reiterated that Markou should adjust her expense report, expressing that he believed she extended the trip for personal reasons, opining that she “could have changed flights,” and commenting that “there was only so much BS [he could] deal with.” A.172. However, Reinhold said he would reconsider if Markou could produce emails showing that meetings were scheduled and cancelled and proof that she tried to reschedule her flight. A.545-46. As she told Reinhold, Markou had not succeeded in scheduling any pre-conference meetings—so no meetings were cancelled—but she provided emails demonstrating that she reached out to several contacts to schedule meetings. A.496-97; A.525-42; A.545-57. Markou offered to pay lodging and rental car expenses for April 19 (and later offered to cover an additional day). A.394-95; A.398; A.501.

On May 31, Markou told Lerner she was pregnant. A.502. In June 10 and 11 emails to Reinhold, Markou referenced her pregnancy, explaining that, because she was feeling unwell due pregnancy-related morning sickness and exhaustion at the time of the California trip, “[t]he last thing [she] cared about doing was extending a business trip.” A.545-46. A few days later, on June 13, Reinhold directed White to investigate Markou’s expense report. A.195. White expanded the investigation to include review of Markou’s emails. A.202. On June 21, Systemax placed Markou on administrative leave. A.207-08. On June 26, White issued an audit report concluding that Markou engaged in misconduct. A.198; A.200. Systemax terminated Markou the same day. A.210.

The audit report concluded that “there was no business reason” for the April 19 or 20 stay during Markou’s California trip because she did not have any meetings scheduled, finding Lenzi’s emails attempting to schedule meetings insufficient. A.203. The report deemed Markou’s efforts to rebook her flight “half-hearted.” Id. Although the report acknowledged that Markou told Reinhold she would pay lodging and rental car expenses for April 19, it went on to conclude that she made a false statement in her expense report because she allegedly told her assistant to request reimbursement for taxes associated with her April 19 lodging and rental car. A.204. Markou denied directing her assistant to shift the taxes for April 19. A.394-98.

The report also found that Markou falsely stated that she attended every conference session. A.204. The sessions Markou missed were lunch on the final day of the conference and a finale featuring comedian Howie Mandel, which did not qualify for continuing education credits. A.514; A.579-81; A.882-91. The report further faulted Markou for encouraging a coworker to take a job with another company and for sending emails criticizing coworkers. A.204. Finally, the report asserted that Markou’s calendar showed that she was “[a]vailable” in the office on May 31, while she was actually “at Starbucks and maybe [out for] a walk.” Id.

II. Procedural History

Markou filed suit complaining of pay discrimination under the EPA and Title VII, pregnancy discrimination under Title VII, and retaliation under Title VII and the EPA. SpA.29-30. The district court rejected Markou’s EPA pay discrimination claim at the prima facie stage on the rationale that Markou and her comparators (White, Axmacher, Baker, Schaffer, and Rush) did not perform “substantially equal” work. SpA.42-43; Sp.A.46. The district court determined that “material differences” between Markou’s and her comparators’ job duties “outstripped” the similarities. SpA.43.

The district court also rejected Markou’s Title VII sex discrimination claim. The court acknowledged that Title VII claims may be analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and articulated the standard prima facie case for Title VII claims. SpA.40. The district court explained that the parties disagreed as to whether the record supported an “inference of discrimination” based on sex, the final element of a Title VII prima facie case under circuit law. SpA.47.

Noting that Markou alleged discriminatory pay based on sex, the district court cited Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), for the proposition that “[a] claim of unequal pay for equal work under Title VII ... is generally analyzed under the same standards used in an EPA claim.” SpA.48-49. Echoing the EPA’s equal pay for “equal work” standard, see 29 U.S.C. § 206(d)(1), the district court assumed that Markou “must demonstrate that the positions held by her purported comparators are substantially equal to her position.” SpA.48. The court concluded that Markou could not meet this threshold because she could not establish a prima facie case under the EPA. Sp.A.49.

The district court went on to state that, “even if [Markou] could make an equal work showing,” she was required to “produce evidence of discriminatory animus in order to make out a prima facie case of intentional sex-based salary discrimination” under Title VII. Id. (quoting Tomka, 66 F.3d at 1313). The court rejected Markou’s evidence of animus—that Reinhold made repeated sexist comments and treated her worse than male employees regarding office hours requirements, vacation policies, and expansion of the Risk Management department—on the ground that Markou could not show a link between Reinhold’s conduct and her pay. SpA.49-50.

Next, the district court concluded that Markou could not establish a prima facie case of pregnancy discrimination because she did not demonstrate that her termination “occurred under circumstances giving rise to an inference of discrimination.” SpA.47; SpA.51. The district court again rejected Markou’s evidence of sexist comments and disparate treatment by Reinhold and underscored that Markou did not present evidence of pregnancy-related comments or criticism or more favorable treatment of non-pregnant employees. SpA.50-51. The district court’s analysis did not address the close temporal proximity (less than one month) between Markou’s pregnancy announcement and her termination, but the court noted Systemax’s argument that this temporal gap was insufficient to establish a prima facie case of pregnancy discrimination. SpA.32.

Finally, the district court granted summary judgment to Systemax on Markou’s EPA and Title VII retaliation claims predicated on her complaints of pay discrimination. The district court agreed with Systemax that Markou could not establish a prima facie case of retaliation because she did not engage in protected activity. SpA.53-54. The district court acknowledged that Markou “complained about her level of compensation,” but held that “there is nothing in the record which evinces that her complaints related to her gender or were based on a violation of law.” SpA.53. The district court focused on Markou’s March 29 email to Leeds, which the court characterized as “an [a]mbiguous complaint[] that do[es] not make the employer aware of allegedly discriminatory misconduct, and, hence, do[es] not constitute protected activity.” SpA.53. In the district court’s view, “at most,” Markou’s March 29 email “conveyed a desire to be paid like her fellow executive colleagues” and like her colleagues in New York. Id. The district court did not discuss Markou’s earlier pay discrimination complaints.

ARGUMENT

The Commission urges this Court to clarify the standard for Title VII pay discrimination and hold that a Title VII pay discrimination plaintiff is not required to establish a prima facie case under the EPA or demonstrate “equal pay for equal work.” The EPA holds employers strictly liable for a limited subset of sex-based pay discrimination, where an employee is paid less than employees of the opposite sex who perform “equal work.” 29 U.S.C. § 206(d)(1); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (EPA imposes strict liability). In contrast, Title VII reaches compensation discrimination that occurs “because of ... race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). This Court should remand for further proceedings consistent with the clarified standard.

Also, this Court should reverse summary judgment for Systemax on Markou’s pregnancy discrimination and retaliation claims because the district court erred in concluding that Markou could not establish a prima facie case for those claims. Markou marshalled sufficient evidence to meet her “minimal” burden at the prima facie stage, Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013), because the record supports an inference that her termination “occurred under circumstances giving rise to an inference of [pregnancy] discrimination” and establishes that she engaged in protected activity.

I. A Title VII pay discrimination plaintiff need not establish an EPA prima facie case or demonstrate “equal pay for equal work.”

The district court assumed that Markou was required to fulfill two requirements to “make out a prima facie case of intentional sex-based salary discrimination” under Title VII: (1) “demonstrate that the positions held by her purported comparators are substantially equal to her position” and (2) “produce evidence of discriminatory animus.” SpA.48. The district court concluded that Markou could not meet the first requirement because, in the court’s view, she could not establish a prima facie case under the EPA. SpA.49. The standard the district court applied has the effect of requiring a Title VII pay discrimination plaintiff to prove an EPA prima facie case—or at least meet the EPA’s “equal work” requirement, see 29 U.S.C. § 206(d)(1)—and provide additional evidence of discrimination.

However, while this may be sufficient to make out a Title VII claim, it is not necessary for all such claims, including this one. And requiring a Title VII pay discrimination plaintiff to show that her employer offered lesser pay for equal work ignores differences between the statutory text of Title VII and the EPA and conflicts with Supreme Court precedent. Title VII prohibits “discriminat[ion] ... with respect to ... compensation ... because of ... sex,” 42 U.S.C. § 2000e-2(a)(1), while the EPA imposes strict liability on employers who “discriminate ... on the basis of sex by paying [lower] wages ... [than] it pays ... to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility.” 29 U.S.C. § 206(d)(1); see Belfi, 191 F.3d at 135 (strict liability). Therefore, in County of Washington v. Gunther, 452 U.S. 161 (1981), the Supreme Court made clear that Title VII covers some pay discrimination that is not actionable under the EPA. Id. at 168 (holding that Title VII is not limited to pay discrimination claims “arising from ‘equal work’”).

For example, Title VII, but not the EPA, may cover a woman “hired … for a unique position in [a] company,” whose employer “admit[s] that her salary would have been higher had she been male.” Id. at 179. Or, if an employer “used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men” may pursue a Title VII claim, but not an EPA claim. Id. The Commission’s EPA regulations echo that principle: “[T]itle VII covers types of wage discrimination not actionable under the EPA. Therefore, an act or practice of an employer or labor organization that is not a violation of the EPA may nevertheless be a violation of [T]itle VII.” 29 C.F.R. § 1620.27(a).

Given Title VII’s broader coverage, requiring a Title VII pay-discrimination plaintiff to establish an EPA prima facie case makes little sense. Instead, a Title VII pay discrimination plaintiff may survive summary judgment by proceeding as in any Title VII suit. That is, a plaintiff may present direct evidence of pay discrimination or may proceed under the McDonnell Douglas burden-shifting framework or indirect-evidence approach typically applied in Title VII cases.

This distinction between Title VII and the EPA is important because a Title VII pay discrimination claim need not be predicated on equal pay for equal work. See Gunther, 452 U.S. at 168, 179. In the EPA context, a plaintiff must show that a proffered comparator “perform[s] equal work on jobs requiring equal skill, effort, and responsibility[] and [that] the jobs are performed under similar working conditions.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254-55 (2d Cir. 2014). In contrast, in the Title VII context, a plaintiff need only show that the proffered comparator “ha[s] a situation sufficiently similar to plaintiff’s to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001). Given Title VII’s broader coverage, a Title VII pay discrimination plaintiff therefore should not be required to demonstrate that her comparators meet the EPA’s more stringent standard.

Decisions within this Circuit are inconsistent. Some decisions appear to assume that plaintiffs must satisfy the EPA’s “equal pay for equal work” standard. See, e.g., Belfi, 191 F.3d at 139-40 (to establish a prima facie case of pay discrimination under Title VII, plaintiff must show she “was paid less than men for the same work”).[3] However, on other occasions, this Court has recognized that a Title VII pay discrimination plaintiff may proceed using the typical Title VII prima facie case. See McGuinness, 263 F.3d at 53 (plaintiff may show that “a similarly situated employee ... received better treatment” to establish prima facie case of severance pay discrimination under Title VII); Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 524, 528 (2d Cir. 1992) (discussing plaintiff’s EPA and Title VII claims separately); see also Jamilik v. Yale Univ., 362 F. App’x 148, 149-51 (2d Cir. 2009) (affirming summary judgment on the plaintiff’s Title VII pay discrimination claim on the rationale that she “failed to establish a prima facie case for discrimination under the burden-shifting framework established in McDonnell Douglas”). We urge this Court to make clear that the latter approach is correct.

As an illustration of the confusion within this Circuit, this Court has cited the “equal pay for equal work” standard in the context of a race-based pay discrimination claim in at least two unpublished decisions. See Martinez v. Davis Polk & Wardwell LLP, 713 F. App’x 53, 55 (2d Cir. 2017) (“To prove pay discrimination [under Title VII], Martinez must satisfy the ‘demanding’ standard of the ‘equal work inquiry ... [which] require[s] evidence that the jobs compared are substantially equal.’” (quoting Port Auth., 768 F.3d at 255)); Frederick v. United Bhd. of Carpenters, 665 F. App’x 31, 34 (2d Cir. 2016) (plaintiff must show she was “paid less than [a person outside the protected class] for the same work” to establish a prima facie case of Title VII pay discrimination); see also Frederick v. United Bhd. of Carpenters & Joiners of Am., 12 Civ. 2387, 2015 WL 12964662, at *1 (E.D.N.Y. Mar. 26, 2015) (noting that plaintiff alleged race-based pay discrimination). But the EPA covers sex only, and it certainly does not follow that the “equal pay for equal work” standard should apply in non-sex-based Title VII pay discrimination suits. Moreover, the facts of Martinez are analogous to one of Gunther’s examples of sex discrimination that Title VII (but not the EPA) may prohibit: the panel affirmed summary judgment on plaintiff’s disparate pay claim because, among other reasons, she “admitt[ed] that she ‘holds a unique position and there is no point of comparison’” “to any of her colleagues.” Martinez, 713 F. App’x at 55; see also Gunther, 452 U.S. at 179.

It is true that the district court accurately cited this Court’s precedent stating that (1) “a claim of unequal pay for equal work under Title VII … is generally analyzed under the same standards used in an EPA claim” and (2) that “a Title VII plaintiff must also produce evidence of discriminatory animus in order to make out a prima facie case of intentional sex-based salary discrimination.” Tomka, 66 F.3d at 1312-13. Tomka, however, is limited, on its own terms, to cases where the plaintiff solely asserts “unequal pay for equal work.” Id. at 1312. In fact, the Tomka panel concluded that the plaintiff could establish an EPA prima facie case as to several comparators; that is, the evidence showed that she was “paid less ... [for] substantially equal work under similar working conditions.” Id. The same is true for Belfi, another published decision by this Court, which stated that the plaintiff must show she “was paid less than men for the same work” to establish a prima facie case of pay discrimination under Title VII. 191 F.3d at 139-40. There, the employer conceded that the plaintiff’s comparators performed equal work and the court found she established an EPA prima facie case. Id. at 136. Neither Tomka nor Belfi stands for the broader proposition that a plaintiff can only pursue a Title VII pay discrimination claim if she demonstrates “equal work.” Indeed, it is well settled, as explained above, that a plaintiff may bring a Title VII pay discrimination claim even where her comparators did not perform equal work. Gunther, 452 U.S. at 179.[4]

Moreover, the first part of Tomka’s formulation—that Title VII and EPA claims are “analyzed under the same standards,” 66 F.3d at 1312—may be reconciled with Gunther (and the Commission’s EPA regulations) to the extent that it signifies that Title VII “incorporate[s] the four affirmative defenses of the Equal Pay Act into Title VII for sex-based wage discrimination claims.” Gunther, 452 U.S. at 168. In other words, if a pay differential is based on seniority, merit, quantity or quality of production, or any other factor other than sex, it is not sex discrimination under Title VII or the EPA. Id. at 169; 29 U.S.C. § 206(d)(1). This reading makes sense because the decision Tomka cites for the “same standards” principle, Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 446 (D.C. Cir. 1976), observes (on the very page Tomka cites) that “a sex-predicated wage differential is immune from attack under Title VII only if it comes within one of the four enumerated exceptions to the Equal Pay Act.”

As to the second part of the Tomka formulation, to the extent that Tomka suggested that a Title VII pay discrimination plaintiff must always establish an EPA prima facie case and provide additional evidence of discriminatory intent to prove “intentional sex-based salary discrimination,” the Commission disagrees with this requirement, as explained above. In fact, the cases Tomka cites in its discussion of Title VII pay discrimination claims do not endorse this requirement, and actually differentiate between the EPA and Title VII prima facie cases. See 66 F.3d at 1313 (citing cases). For example, Aldrich v. Randolph Central School District, 963 F.2d at 524, 528, explained that a plaintiff may “establish a valid claim under Title VII for sex-based wage discrimination” by “demonstrat[ing] a disparate impact ... [or] present[ing] evidence of intentional sex-based wage discrimination” and did not discuss the EPA prima facie case in its Title VII pay discrimination analysis. See also Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994) (“The plaintiff may establish a prima facie case [of Title VII pay discrimination] by demonstrating that she is female, i.e., a member of a protected class, and that the job she occupied was similar to higher paying jobs occupied by males”); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526-29 (11th Cir. 1992) (concluding that a plaintiff may apply the McDonnell Douglas approach, including the typical Title VII prima facie case, to a Title VII pay discrimination claim).

Moreover, the idea that a Title VII plaintiff may offer evidence of discriminatory intent to establish a prima facie case is consistent with either the direct evidence route or the McDonnell Douglas burden-shifting approach. Of course, the direct evidence approach involves evidence of intentional discrimination. And the McDonnell Douglas framework is a means to demonstrate, at the summary judgment stage, that the evidence supports a finding of intentional discrimination. “The factfinder’s disbelief of the reasons put forward by the defendant” at the pretext stage “may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (“[T]he McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination.”).

In summary, we urge this Court to recognize that Tomka’s formulation (and similar formulations echoed in Belfi and other decisions after Tomka) is limited to Title VII pay discrimination claims alleging equal pay for equal work. To the extent that Tomka could be understood to require an EPA prima facie case in other cases, this Court should clarify that that reading of Tomka is incorrect. In doing so, we recommend that the court of appeals invoke Aldrich, on which Tomka relies, as prior precedent that makes clear that Title VII pay discrimination plaintiffs need not establish an EPA prima facie case or demonstrate “equal pay for equal work.”

Finally, we recommend that this Court clarify that a plaintiff may pursue a Title VII pay discrimination claim just as she may pursue any Title VII claim, such as by presenting direct evidence of discrimination or applying the McDonnell Douglas framework. That is, a Title VII pay discrimination plaintiff may establish a prima facie case of pay discrimination under the McDonnell Douglas framework by showing (1) membership in a protected class; (2) she was qualified and was satisfactorily performing her duties; (3) she suffered an adverse employment action (here, lower pay); and (4) circumstances giving rise to an inference of discrimination. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015). To establish the fourth element, a plaintiff may provide evidence of a comparator who is paid more and “ha[s] a situation sufficiently similar to plaintiff’s to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” McGuinness, 263 F.3d at 54; see also Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (plaintiff may show circumstances giving rise to an inference of discrimination “by showing that the employer ... treated him less favorably than a similarly situated employee outside his protected group”).

II. The district court erred by rejecting Markou’s pregnancy discrimination claim at the prima facie stage.

The district court wrongly concluded that Markou could not establish a prima facie case of pregnancy discrimination because she did not demonstrate that her termination “occurred under circumstances giving rise to an inference of discrimination.” The district court faulted Markou because she could not point to negative comments or criticism based on pregnancy but ignored the temporal proximity between Markou’s pregnancy announcement and her termination, which is sufficient to “suggest[] an inference that the employer acted with discriminatory motivation” at the prima facie case stage. That is, “temporal proximity between the employer’s learning of an employee’s pregnancy and an adverse employment action taken with respect to that employee ... may ... support ... an inference of pregnancy discrimination....” Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir. 2006). Shortly after Markou informed Lerner, the General Counsel, of her pregnancy (May 31), Systemax placed her on administrative leave (June 21), and terminated her less than a week later (June 26). Markou also mentioned her pregnancy in emails to Reinhold on June 10 and 11. At the prima facie stage, the less-than-one-month lapse between Markou’s announcement and termination “establish[es] a nexus between [Markou’s] pregnancy and her termination.” Megivern v. Glacier Hills, Inc., 519 F. App’x 385, 395-96 (6th Cir. 2013) (employer discharged the plaintiff two months after learning of her pregnancy); Asmo, 471 F.3d at 591-94 (same). This is enough to carry Markou’s burden at the prima facie stage, a burden this Court has characterized as “minimal” and “de minimis.” Kwan, 737 F.3d at 844; see also Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015) (“[T]he prima facie requirements are relaxed.”).

Systemax’s treatment of Markou immediately after she announced her pregnancy strengthens the “inference” of “discriminatory motivation.” Systemax ratcheted up its inquiry into Markou’s expense report shortly after Markou’s announcement. Reinhold asked White to investigate Markou’s expense report on June 13, only three days after Markou’s first email to Reinhold citing her pregnancy and morning sickness as a reason why she had no desire to extend the California. As part of that investigation, White also reviewed Markou’s emails and her calendar, faulting her for negative comments about coworkers and for stepping away from her desk to buy coffee. In summary, Systemax’s increased scrutiny of Markou immediately after her pregnancy announcement and Markou’s termination less than a month after the announcement provide, at the very least, “some minimal evidence” that permits an “inference ... of discriminatory motivation.”

III. The district court erred by rejecting Markou’s retaliation claims at the prima facie stage.

As the district court explained, a plaintiff proceeding under the McDonnell Douglas burden-shifting approach may establish a prima facie case of Title VII retaliation by showing that “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action ...; and (4) [there was a] a causal connection.” Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013). “Protected activity” includes “oppos[ition] [to] any practice made ... unlawful” under Title VII. 42 U.S.C. § 2000e-3(a); see Littlejohn, 795 F.3d at 317 (underscoring that a broad range of conduct may constitute protected opposition under Title VII); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 112-13 (2d Cir. 2015) (same, for Fair Labor Standards Act’s (FLSA) anti-retaliation provision, 29 U.S.C. § 215(a)(3), which applies to EPA retaliation claims).

The district court appeared to consider both the protected-activity and employer-awareness elements (although Systemax challenged only the protected-activity element). SpA.53-54. This Court has explained that the employer-awareness element “implicit[ly]” includes “the requirement that [the employer] understood, or could reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998). Regardless, Markou marshalled sufficient evidence to demonstrate, at the prima facie stage, that she engaged in protected opposition and that Systemax “could have reasonably understood” her complaints as opposition to sex-based pay discrimination. See Kwan, 737 F.3d at 844 (plaintiff’s burden at the prima facie stage is “minimal”).

The district court erred on both counts in concluding that “there is nothing in the record which evinces that [Markou’s] complaints [(1)] related to her gender or [(2)]were based on a violation of law.” SpA.53. First, the district court ignored substantial record evidence from which a jury could infer that “Markou’s complaints related to her [sex].” An employee who objects to sex discrimination need not “append ... each allegation [with] the conclusory declaration ‘and this was done because of my sex’” so long as the record “permit[s] the inference that plaintiff was subjected to [discrimination] because of her sex.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, 716 F.3d 10, 15 (2d Cir. 2013).

The district court focused solely on Markou’s March 29 email, although a jury could conclude that Markou’s prior complaints provide important context for her March 29 complaint. When Markou first complained of pay discrimination in 2011, she told Reinhold that she was “concerned that [she] wasn’t paid relative to her peers” and “wanted to be treated similarly to the males.” In 2012, she complained about her bonus to Reinhold and requested “compensat[ion] relative to [her] peers” “on the management team.” Markou also approached Leeds about her pay “numerous times” (in Leeds’ words) before formally complaining to Leeds in the March 29 email, which again referred to Markou’s “peer group.” Based on the history of Markou’s complaints, a jury could determine that Reinhold and Leeds “could have reasonably understood,” Galdieri-Ambrosini, 136 F.3d at 292, that Markou’s repeated complaints about receiving lesser compensation than her “peers” referred to her “male” counterparts. See Amin v. Akzo Nobel Chems., Inc., 282 F. App’x 958, 962 (2d Cir. 2008) (record supported prima facie case of retaliatory discharge where employee’s initial complaints referenced “discrimination” and “racism,” employee renewed complaints on a weekly basis, and employee was terminated shortly after complaining of “unfair salary and lack of promotion” during a performance review).[5]

The record also includes other evidence that, a jury could conclude, provided further notice to Systemax that Markou objected to sex-based pay discrimination. For example, the district court ignored that Markou’s March 29 email referred to several male colleagues by name (“Tom [Axmacher,], Ben [White], and Curt [Rush]”). Also, a jury could determine that Systemax should have taken into account that Markou was the only woman in the Executive Team in the Corporate Business Unit and the only woman on Systemax’s “Management Team.” In summary, viewing all of the evidence in the light most favorable to Markou, the record is sufficient to establish that Systemax “could have reasonably understood” that Markou opposed sex-based pay discrimination.

Second, to the extent that the district court, in concluding that “there is nothing in the record which evinces that [Markou’s] complaints ... were based on a violation of law,” assumed that Markou was required to articulate that Systemax was violating the law, that is incorrect. Opposition may be informal and need not explicitly allege “discrimination” or use any legal terminology. See Crawford v. Metro. Gov. of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009) (explaining that an employee’s communication of a belief that her employer has discriminated “virtually always ‘constitutes the employee’s opposition to the activity’”; observing that responding to a question about discrimination may constitute protected opposition under Title VII); Littlejohn, 795 F.3d at 317 (Title VII’s “opposition clause protects [formal] as well [as] informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges” (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990)); Greathouse, 784 F.3d at 107 (holding that, under the FLSA’s anti-retaliation provision, internal oral complaints may constitute protected activity).

Moreover, Markou was not required to “establish that the conduct she opposed was actually a violation of Title VII, but only that she possessed a good faith, reasonable belief that the underlying employment practice was unlawful under that statute.” Galdieri-Ambrosini, 136 F.3d at 292. The significant gap between Markou’s salary and male department heads’ salaries supports such a reasonable belief. As to Systemax’s knowledge that Markou opposed unlawful activity, contrary to the district court’s view, Systemax “could have reasonably understood” that Markou’s pay discrimination complaints related to a violation of law. As explained, Markou’s complaints, taken in context, could convey that Markou objected to sex-based disparate pay, a practice which may violate Title VII.

Finally, this case is distinguishable from Talwar v. Staten Island University Hospital, No. 12-CV-33, 2014 WL 5784626 (E.D.N.Y. Mar. 31, 2014), which the district court invoked for the idea that Markou’s March 29 email would not have “put [Systemax] on notice that [Markou] believe[d] gender-based discrimination was occurring.” SpA.54. This Court agreed with the Talwar district court that the record did not establish that the employer “[was] on notice that Talwar’s complaints were about gender discrimination.” Talwar v. Staten Island Univ. Hosp., 610 F. App’x 28, 30 (2d Cir. 2015).

But the facts in this case are quite different. In Talwar, the plaintiff and other female pathologists met with a hospital administrator to complain that a male pathologist received a higher salary. 2014 WL 5784626, at *2-3. The plaintiff did not state during the meeting that she believed the male pathologist was paid more because he was male. Id. at *3. And the other female pathologists did not view the meeting as focused on sex discrimination; instead, they objected because the male pathologist was less qualified. Id. at *9. In contrast, Markou told Reinhold she “wanted to be treated similarly to the males” with respect to pay, which would have allowed Systemax to infer that Markou’s subsequent complaints regarding her “peers’” compensation related to sex-based pay discrimination. Although some of Markou’s other evidence (her reference to Axmacher, White, and Rush by name and her status as the only woman in the Executive Team and Management Team) arguably comes closer to the evidence in Talwar, a jury could view that evidence in the context of Markou’s initial request that she “be treated similarly to [her] male[]” “peers,” and her repeated complaints that her compensation was lower than that of her “peers.”

CONCLUSION

In conclusion, the Commission urges this Court to reverse the district court’s opinion with respect to Markou’s Title VII pay discrimination, Title VII pregnancy discrimination, and Title VII retaliation claims and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE s/ Anne W. King___________

Deputy General Counsel Attorney for amicus Equal Employment Opportunity Commission

JENNIFER S. GOLDSTEIN

Associate General Counsel U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

BARBARA L. SLOAN Office of General Counsel

Attorney 131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

[1] The Commission takes no position on any other issues in this appeal.

[2] Although the case caption reflects Plaintiff-Appellant’s prior name, Danielle Lenzi, the Commission uses her current name, Danielle Markou, for consistency with Markou’s brief.

[3] This Court has also cited an “equal pay for equal work” standard (or something similar) in several unpublished decisions addressing Title VII sex-based pay discrimination claims. See, e.g., Jaafari v. Bank of Tokyo-Mitsubushi UFJ, Ltd., 509 F. App’x 68, 68-69 (2d Cir. 2013) (plaintiff’s sex discrimination claim “necessarily fail[ed]” because he “did not allege that [his female comparator] ... had substantially equal responsibilities”); Lawless v. TWC Media Sols., Inc., 487 F. App’x 613, 617-18 (2d Cir. 2012) (Title VII pay discrimination plaintiff must show that “she was paid less than members outside of the protected class for the same work”); Gerbush v. Hunt Real Estate Corp., No. 00-7274, 2000 WL 1689764, at *1 (2d Cir. Nov. 9, 2000) (Title VII pay discrimination plaintiff “must show that ... she was paid less than non-members of her class for work requiring substantially the same responsibility”).

[4] Therefore, Tomka and Belfi would not preclude a plaintiff alleging sex-based pay discrimination from arguing, first, that she has identified a valid Title VII comparator because the proffered comparator satisfies the EPA’s “equal work” standard, and second, in the alternative, that her proffered comparator meets Title VII’s standard for comparators even if he did not perform “equal work.”

[5] The defendant in Amin asserted that, during the performance review shortly before his termination, the plaintiff merely stated, “You don’t pay me enough.” Br. for Def.-Appellee, Amin, 282 F. App’x 958 (No. 06-5166-cv), 2007 WL 6512836, at *21. However, this Court considered the plaintiff’s full history of complaints (including those that referred to “discrimination”) in concluding that he established a prima facie case.