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concluding that plaintiff sufficiently alleged willfulness in Equal Pay Act case where defendants ignored plaintiff's repeated complaints that she was being underpaid
Summary of this case from Marcus v. Am. Contract Bridge League, Inc.Opinion
CIVIL ACTION No. 96-11718-PBS
July 6, 2000
JUDY CHENG, Plaintiff pro se, 772 Wellman Avenue N. Chelmsford, MA 01863
Adrienne M. Markham, Lynne Alix Morrison, Goulston Storrs, 400 Atlantic Avenue Boston, MA 02210-3333 617-482-1776, Attorneys for IDEASSOCIATES, INC. Defendant,
Adrienne M. Markham, term 03/25/99, Lynne Alix Morrison David A. Brown, Sherin Lodgen LLP 100 Summer Street, Boston, MA 02110, 617-646-2000 Attorneys for GAUTAN GUPTA Defendant
Adrienne M. Markham, Lynne Alix Morrison, Evan T. Lawson, Lawson Weitzen, 425 Summer Street, Boston, MA 02210, 617-439-4990, Attorneys for DAVID HUNTER Defendant
Jonathan D. Yellin, Riemer Braunstein, 3 Center Plaza, Boston, MA 02108, 617-523-9000, Attorneys for JOHN A. BURDICK, JR. Defendant
LAWRENCE M. COHEN ADR Provider United States District Court United States Courthouse 1 Courthouse Way Boston, MA 02210
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Judy Cheng is an Asian-American female who was fired by her employer, IDEAssociates, Inc., after she complained to her supervisors and to the Equal Employment Opportunity Commission ("EEOC") about receiving unequal pay for equal work. Plaintiff brings her claims, pro se, under the Equal Pay Act ("EPA"), 29 U.S.C. § 206 (d)(1), and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. She alleges that: (1) she was denied equal pay based on her gender; and (2) she was discharged in retaliation for contacting the EEOC.
Defendants move for summary judgment on the retaliation claim under FLSA pursuant to Fed.R.Civ.P. 56(c) on the grounds that: (1) the plaintiff did not engage in statutorily protected conduct; (2) her discharge was not in retaliation for her statutorily protected activity; and (3) David Hunter and Gautam Gupta are not personally liable for the retaliatory conduct. Plaintiff has moved to reinstate her EPA claim which had been dismissed as time-barred.
After hearing, defendants' motion for summary judgment on plaintiff's retaliation claim under FLSA is DENIED . Based on the submissions, the Court ALLOWS plaintiff's motion for reinstatement of the Equal Pay Act claim.
II. PROCEDURAL BACKGROUND
On July 25, 1996, the plaintiff filed her original complaint,pro se, in Middlesex Superior Court. The complaint alleged, among other things-p that the defendants violated the EPA by paying her at a discriminatory rate, and fired her in retaliation for filing a complaint with the EEOC, in violation of the FLSA. The defendants removed the case to federal court on August 26, 1996.
On October 16, 1996, the District Court dismissed the EPA claim as barred by the statute of limitations. Although the plaintiff was terminated on August 2, 1993, her complaint alleged that she received unequal pay from May, 1989 through February, 1993. See Compl, ¶ 6. Since the plaintiff filed her complaint on July 25, 1996, the court found that the plaintiff's EPA action was barred because the EPA's statute of limitations is, at most, three years. See 29 U.S.C. § 255 (a). Plaintiff filed a motion for leave to file an amended complaint and a motion for reconsideration, seeking to correct errors in her complaint as to the dates of discrimination which would, she believed, allow reinstatement of the EPA claim. By the District Court's orders dated December 18, 1996 and March 6, 1997, these motions were denied.
On June 12, 1997, plaintiff's claim of retaliation under FLSA was dismissed for failure to comply with a discovery order. The plaintiff appealed, and the First Circuit Court of Appeals vacated the decision on the grounds that the sanction of dismissal was not allowed under Fed.R.Civ.P. 37(b)(2). In the appeal, plaintiff challenged not only the discovery sanction but also the denial of the motion to amend. The court stated that although the EPA claim was not properly before the court on appeal, "[w]here the reason for the denial of an amendment is not obvious from the record, . . . we urge the district court to enter specific, reviewable findings." The court ordered the case transferred to another trial court judge on remand.
III. FACTS
Drawing all inferences in favor of the nonmoving party, the Court treats the following facts as undisputed for purposes of addressing the motion for summary judgment on the retaliation claim:
The plaintiff was hired by IDEAssociates as a software engineer on May 15, 1989. She has a Masters in Science from the University of North Texas and a Bachelor of Science from the National Taiwan University, as well as over four years of programming experience. Between May, 1989 and February, 1993, she was the only female employee on a team that consisted of approximately five members. Everyone on her team had the same level of technical skill and performed similar work. However, the plaintiff claims that she was paid approximately $20,000 less per year than her male counterparts.
Peter Ipsen, the plaintiff's initial supervisor, evaluated her on June 22. 1990 and November 26, 1990, stating that the plaintiff was a dedicated, hard worker who successfully completed her tasks.
On November 4, 1991, the plaintiff wrote a note to Ipsen as part of her performance review in which she stated that she believed she was being underpaid for someone with her education and experience. On her review of January 26, 1992, she wrote another note to her supervisor indicating that she believed she was not receiving equal pay due to her gender and race. Ipsen's evaluation of February 4, 1992 contained positive comments, as well as suggestions for improvement.
On November 20, 1992, plaintiff filed an informal EPA complaint with the EEOC alleging sex discrimination. On December 4, 1992, the plaintiff again wrote a note to Ipsen, reiterating that she believed she was being underpaid. In addition, the plaintiff told her co-workers Grace Yang and Pen Hsieh that she was not receiving equal pay and that the defendants mistreated her after she filed the EPA complaint.
The EEOC treated the plaintiff's case as though it were a complaint and conducted an investigation on its own without notifying the defendants until it was complete. Gupta was notified of the EEOC's investigation in a letter received on March 17, 1993, but no employee was named as having initiated the investigation. Defendants assert that they did not know until l996 that the plaintiff brought on the investigation.
At approximately the same time that the defendants received notice of the EEOC investigation, Hunter asked Ipsen to write a memorandum evaluating the plaintiff's performance over the previous year. This evaluation, dated March 17, 1993, noted that the plaintiff's performance was unsatisfactory and that, among other things, she was unable to complete projects on time and she was uncooperative. Plaintiff claims that she was placed in a Performance Warning Evaluation Program ("Warning Program") on March 18, 1993. Defendants dispute this date and claim that they placed her in the Warning Program on March 11, 1993, one week prior to receiving notice from the EEOC. As part of the Warning Program, the plaintiff was transferred from Ipsen's group into Chet Birger's group. The plaintiff claims that between January and March of 1993 the defendants sought a new employee to implement a project for which her supervisor knew she had the qualifications. In a memorandum dated July 1, 1993, Birger noted that the plaintiff was being reassigned from a project because she failed to demonstrate the requisite level of "independence." Over the following months, the plaintiff continued to complain to her supervisors regarding unequal pay. The plaintiff was fired on August 2, 1993.
III. DISCUSSION A. SUMMARY JUDGMENT
1. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). To prevail on summary judgment, the moving party must show that there is insufficient evidence to support the nonmoving party's position. See Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), cert. denied, 484 U.S. 1066 (D.D.C. 1988). The Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Barbour, 63 F.3d at 36.
2. Personal Liability
Defendants Hunter and Gupta argue that they are not personally liable for the retaliation claim under FLSA. Although Hunter participated in the decision to discharge the plaintiff, he asserts that he was not aware of Cheng's complaints. Gupta states he neither participated in the decision nor was aware of the complaints. Plaintiff argues that Hunter and others were aware of her complaints and retaliated against her with defamatory evaluations and her subsequent discharge.
The FLSA defines an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203 (d). Courts construing this language have concluded that Congress intended a broad construction of employer-employee relationship in accordance with the remedial context of the FLSA. See Donovan v. Agnew, 712 F.2d 1509, 1513-14 (1st Cir. 1983). Courts have eschewed technical concepts to define the scope of that relationship, looking instead to an "economic reality" test. See id.
In determining the extent of personal liability under the Act, "a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages."Id. at 1511. Under this standard, courts consider various elements, such as significant ownership interest of the corporate officers, and their operational control over significant aspects of the corporation's day-to-day functions, including compensation of employees. See Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 677 (1st Cir. 1998) (citing Agnew, 712 F.2d at 1511-14); see also Falk v. Brennan, 414 U.S. 190, 195 (1973) (finding that a partnership with extensive managerial responsibilities and "substantial control of the terms and conditions of work" of employees was an "employer" under FLSA). Some courts have held that an ownership interest in the corporation is not vital, if an officer "effectively dominates its administration or otherwise acts, or has the power to act, on behalf of the corporation vis a vis its employees." Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir. 1983)
Under these principles, the record (which is sketchy on the point) permits an inference that defendants Hunter and Gupta are controlling parties under FLSA for their alleged retaliation against the plaintiff. At the hearing, counsel conceded that both defendants had operational control. Hunter was involved in the decision to terminate the plaintiff, and as the Vice President of IDEAssociates, had significant control over aspects of the company's day-to-day functions. Hunter managed research and development for the entire company and was the general manager of IDEAssociates Courier operations as well. Gupta can also be held personally liable because, although he did not participate in the decision to terminate the plaintiff, he was the President and C.E.O. of IDEAssociates and appears to have had operational control over aspects of the company's day-to-day functions. It can be inferred that both Hunter and Gupta had significant ownership interests as the co-founders of IDEAssociates.
3. Retaliatory Conduct
The FLSA's anti-retaliation provision states:
[I]t shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter. . . .29 U.S.C. § 215 (a)(3). The elements of a claim for retaliation under the FLSA mirror those under Title VII. They require, "at a minimum, a showing that: (1) the plaintiff engaged in statutorily protected activity, and (2) his employer thereafter subjected him to an adverse employment action (3) as a reprisal for having engaged in the protected activity." Blackie v. Maine, 75 F.3d 716, 722 (1st Cir. 1996). The third element requires a causal connection between the protected conduct and the adverse action. See id. at 723 (citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991)). After the plaintiff sets forth a discriminatory reason, the burden shifts to the defendant to show a legitimate reason for the release. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); see also Bevins v. Dollar Gen. Corp., 952 F. Supp. 504, 509 (E.D. Ky. 1997) (applying the McDonnell Douglas burden-shifting paradigm to an FLSA retaliation claim); Morgan v. Future Ford Sales, 830 F. Supp. 807, 811-12 (D. Del. 1993) (analyzing an FLSA retaliation claim as a pretext case)
The plaintiff has submitted evidence that she received a poor performance review the day after the company received notice from the EEOC of the investigation, that she was transferred to another position, and after continuing to complain she was discharged from her job on August 2, 1993.
a. Protected Activity
Defendants argue that plaintiff's informal complaints to her supervisors and the EEOC are not protected activity under § 215(a)(3). Plaintiff argues that her informal complaints do constitute protected activity according to the remedial purpose of the statute.
The First Circuit has held that informal complaints by an employee to her supervisor are protected activity within the meaning of the anti-retaliation provision of the FLSA. See Valerio v. Putnam Assocs. Inc. 173 F.3d 35, 41-45 (1st Cir. 1999) (finding that the language of § 215(a)(3), as well as the statute's remedial purpose, provide the need for a broad interpretation of "filing a complaint"). One court has held that an oral complaint to a supervisor regarding a pay disparity is not protected. See Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993). Here, however, there were written complaints as well as a complaint to the EEOC. The plaintiff visited the EEOC, which treated her case as a complaint and launched an investigation of IDEAssociates in response. On these facts, the plaintiff "instituted or caused to be instituted [a] proceeding." 29 U.S.C. § 215 (a)(3); see Valerio, 173 F.3d at 45 (holding that an employee's letter to employer constituted protected activity);EEOC v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir. 1992) (finding that an employee's oral complaint to her employer that she believed they were "breaking some sort of law" in not paying her equally was protected activity)
b. Causal Connection
Defendants argue that there is no causal connection between the plaintiff's protected activity and her discharge because they were not aware of plaintiff's complaints and terminated her as a result of her poor performance. Plaintiff argues that the defendants' critical evaluations and subsequent decision to discharge her were in retaliation for her protected conduct.
In order to establish causation under § 215(a)(3), the plaintiff must provide evidence that the employer's adverse employment action was motivated by the protected activity. See Blackie, 75 F.3d at 723; see also McDonnell Douglas, 411 U.S. at 802-04. A showing of adverse action soon after an employee engages in protected activity is evidence that there is a causal connection between the adverse action and the protected activity.See Ruffino v. State Street Bank Trust, 908 F. Supp. 1019, 1044 (D. Mass. 1995). Such a causal connection creates an inference of retaliation. See id.
Case law draws no bright lines as to what constitutes a time period brief enough to permit an inference of retaliation.Compare DeNovellis v. Shalala, 135 F.3d 58, 75 (1st Cir. 1998) (concluding that a period of five months between filing EEO complaint and notice of removal by high-level official evidenced retaliation); and Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 197, 202 (1st Cir. 1987) (finding nine months between complaint filing and discharge close enough to establish prima facie case of retaliation) abrogated on other grounds by Iacobucci v. Boulter, 193 F.3d 14, 27 (1st Cir. 1999); with Mesnick, 950 F.2d at 828 (considering a time period of nine months too lengthy for a causal connection to be inferred); and Oliver v. Digital Equipment Corp., 846 F.2d 103, 110-11 (1st Cir. 1988) (finding that a period of 2 1/2 years between protected activity and adverse employment action was too long); and Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992) (concluding that a disciplinary letter issued four months after a discrimination charge was filed was not causally related); and Cooper v. City of Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) (finding that the mere fact that plaintiff was discharged four months after filing discrimination charge was insufficient to support an inference of retaliation); and Juarez v. Ameritech Mobile Communications, Inc., 746 F. Supp. 798, 804 (N.D. Ill. 1990) (finding that a six month period between plaintiff's filing of complaint and her discharge did not support an inference of causation, without proof that the defendant had a discriminatory motive to retaliate); and Lees v. Case-Hoyt Core., 779 F. Supp. 717, 727 (W.D.N.Y. 1991) (considering plaintiff's suspension not to be causally related to complaint filed four months earlier)
Here, there is evidence of a causal connection between the plaintiff's statutorily protected activity in complaining to her supervisors and the defendants' decision to discharge her. Plaintiff's protected activity was closely followed by adverse employment action which indicated a causal connection between her discharge and her exercise of protected activity. The plaintiff's evaluations prior to her visit to the EEOC (on November 20, 1992) were generally positive and became critical subsequent to her visit. Although there is a dispute about the precise date of notification, the defendants acknowledge that they were notified of the EEOC's investigation in a letter received on or about March 17, 1993. At approximately the same time, Hunter asked Ipsen to evaluate the plaintiff's performance over the previous year and Ipsen gave her a critical evaluation which was also dated March 17, 1993. On March 18, 1993, the defendants placed the plaintiff in the Warning Program of Birger's group.
Defendants argue that there is no evidence that they knew about the EEOC complaint prior to preparing the negative job evaluation, or that plaintiff was the one who initiated the complaint. Although plaintiff was vocal to her peers and supervisors about her dissatisfaction, IDEAssociates was a large company consisting of approximately 1500 employees and there is no smoking gun evidence showing that the defendants or plaintiff's supervisors knew she was the disgruntled employee who started the law suit. However, that argument does not save them since the plaintiff complained of unequal pay to her supervisors orally and in writing on several occasions. She complained to Birger and, in a memorandum dated July 1, 1993, he notified her that she was being reassigned from a project because she failed to demonstrate the requisite level of "independence." She continued to complain to her supervisors until she was fired on August 2, 1993, five months after the defendants received notice of the EEOC investigation. In sum, as the plaintiff complained to her supervisors of unequal pay, her evaluations worsened, she was not considered to work on different projects for which she was qualified, and she was eventually fired. Defendants have a different version: that her work performance was unsatisfactory because she lacked the requisite independence. These circumstances are sufficient to establish a disputed issue of fact on the retaliation claim.
B. REINSTATEMENT OF EQUAL PAY ACT CLAIM
The plaintiff has filed a motion to amend her complaint to allege an EPA violation that continued until she was fired in August, 1993. The plaintiff alleged in her initial complaint that she did not receive equal pay from the time she began working at IDEAssociates in May, 1989 through February, 1993. However, in her amended complaint and motion for reconsideration, the plaintiff corrected these dates and noted that she was underpaid between May, 1989 and August, 1993. The First Circuit instructed this Court to revisit this issue.
A court must take special care when ruling on pleadings filed by pro se litigants as they are held to less stringent standards than those drafted by lawyers. See Gonyer v. McDonald, 874 F. Supp. 464, 466 (D. Mass. 1995). When a court looks at the allegations in a pro se litigant's complaint and, "under any theory they are sufficient to state a cause of action in accordance with law, a motion to dismiss the complaint must be denied." Id. (quoting Knight v. Mills, 836 F.2d 659, 664 (1st Cir. 1987)). This standard requires the court to be especially indulgent in accepting the truth of the factual assertions of the complaint and to consider every inference helpful to a plaintiff's cause. Id.; see also Prou v. United States, 199 F.3d 37, 42 (1st Cir. 1999)
Defendants argue that this Court should deny the motion to amend because: the plaintiff's EPA claim is barred by the statute of limitations; the plaintiff cannot establish a prima facie case under the EPA; and the defendants' acts fall within exceptions to the EPA because the plaintiff did not perform as well as her male counterparts and plaintiff's work had an insignificant economic benefit to her employer. In assessing defendants' assertion that an amendment is futile, the Court takes all the allegations in the proposed amended complaint in the light most favorable to the plaintiff. See Barbour, 63 F.3d at 36.
Pursuant to 29 U.S.C. § 255 (a), a cause of action under the EPA, "may be commenced . . . within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255. Thus, the point of reference of the statute is "after the cause of action accrued."Id. In determining when an EPA cause of action accrued, the First Circuit held that "a decision to hire an individual at a discriminatory low salary can, upon payment of each subsequent paycheck, continue to violate the employee's rights." EEOC v. McCarthy, 768 F.2d 1, 3-4 (1st Cir. 1985) (quoting Lamphere v. Brown Univ., 685 F.2d 743, 747 (1st Cir. 1982)); see also Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980) (finding that continuing violation of EPA ceased only at the end of employee's employment); Legoff v. Trustees of Boston Univ., 23 F. Supp.2d 120, 128 (D. Mass. 1998) (concluding that violation of EPA was continuous for duration that employee received discriminatory pay)
In the instant case, because there is no allegation that the plaintiff's pay fluctuated, the alleged unequal pay was a continuing event from the time the plaintiff was hired in May, 1989 until she was fired in August, 1993. Defendants concede that if there were a continuing violation of the EPA, the last possible day of the violation was the last day of the plaintiff's employment. Therefore, the cause of action accrued when the plaintiff was fired, in August, 1993. Since the plaintiff filed her complaint on July 25, 1996, her action to enforce a FLSA violation commenced within the three-year statute of limitations for a willful violation of the EPA.
a. Willfulness
Under 29 U.S.C. § 255 (a), the statute of limitations to enforce a FLSA cause of action is two years, unless the violation was willful, in which case the three-year statute of limitations applies. See 29 U.S.C. § 255 (a). Willfulness under FLSA is determined by whether "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute. . . ." Legoff, 23 F. Supp.2d at 125 (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)); accord, Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1079 (1st Cir. 1995). "Recklessness involves more than mere awareness of a governing federal law, or negligence in complying with it, yet the conduct need not rise to the level of `voluntary,' `deliberate,' or `intentional' conduct." Legoff, 23 F. Supp.2d at 125, (citing McLaughlin, 486 U.S. at 134-35);Andover Newton Theological School, Inc. v. Continental Cas. Co., 930 F.2d 89, 91 (1st Cir. 1991) (interpreting McLaughlin); see also EEOC v. McCarthy, 578 F. Supp. 45, 49 (D. Mass. 1983) (finding that existence of nondiscrimination policy evidenced willfulness). Conduct is willful when there is deliberate indifference to legal requirements, but not when there is good faith and merely negligent conduct. See Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 721-22 (1st Cir. 1994)
The plaintiff has made sufficient allegations to suggest a willful violation of the EPA by the defendants. The complaint alleges that the defendants ignored the plaintiff's repeated complaints that she was being underpaid; and that the defendants knew that she was in a group where her male counterparts had the same level of skill and were performing the same type of work, but were compensated more than she was. These allegations, if proven, would support an inference of deliberate indifference to alleged discriminatory compensation. Therefore, the three-year statute of limitations applies.
b. Prima Facie Case
To make out a prima facie case under the EPA, the plaintiff must establish "that the employer paid different wages to an employee of the opposite sex for substantially equal work." Byrd v. Ronayne, 61 F.3d 1026, 1033 (1st Cir. 1995). "[A] plaintiff must show that her employer was subject to the Act, and that she was paid less than her male counterparts who were performing work requiring substantially equal skill, effort, and responsibility under similar working conditions." McMillan v. Mass. Soc'y for the Prevention of Cruelty to Animals, 140 F.3d 288, 298 (1st Cir. 1998); Byrd, 61 F.3d at 1033 ("[the] plaintiff must make a prima facie showing that the employer paid different wages to an employee of the opposite sex for substantially equal work."). The plaintiff does not have to prove that the employer intentionally discriminated against her on the basis of sex in order to prevail under the EPA. See McMillan, 140 F.3d at 298; Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 138 (D. Mass. 1996). The plaintiff is also not required to prove that her job is identical to a higher paid position, but only that the two positions are "substantially equal." See Byrd, 61 F.3d at 1034.
Once the plaintiff establishes a prima facie case, the defendant must establish one of the following affirmative defenses: that the wage discrepancy resulted from (i) a seniority system, (ii) a merit system, (iii) a system measuring earnings by quantity or quality of production, or (iv) a differential based on a factor other than sex. See Byrd, 61 F.3d at 1033-34 (allowing as an affirmative defense under the EPA the fact that a male attorney brought in more clients generating higher billings than a female attorney) (citing 29 U.S.C. § 206 (d)(1));Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974)).
Plaintiff alleges that she was paid less than her male counterparts in the same group while she possessed the same type of technical skills and performed similar work. See Compl., ¶ 6, 9. Thus, plaintiff has pled sufficient facts to establish a prima facie case for an EPA claim.
Plaintiff is allowed to amend her complaint with respect to the EPA claim. This is without prejudice to a motion for summary judgment.
V. PLAINTIFF'S LEGAL REPRESENTATION
Plaintiff, who is not indigent, has stated that she would attempt to acquire legal counsel if the EPA claim were reinstated. Counsel shall enter an appearance within thirty (30) days of the date of this Order. If she has difficulty finding counsel, she shall contact the pro se law clerk, Barbara Morse, and file a motion for a continuance within the thirty (30) days explaining the details of her diligent efforts to find counsel. Legal representation is desirable here because plaintiff's language barrier will make presentation to a jury difficult.
VI. ORDER
For the foregoing reasons, I ORDER the following: that the plaintiff's Equal Pay Act claim be reinstated; that the plaintiff amend her complaint to correct the dates during which she received unequal pay; and that the plaintiff obtain legal counsel within thirty (30) days. Defendant's motion for summary judgment on plaintiff's retaliation claim under FLSA is DENIED . As soon as plaintiff finds legal counsel, the Court will hold a scheduling conference to determine if any additional discovery is necessary on the EPA claim and to set a trial date.