Lenzi v. Systemax, Inc., 120619 FED2, 18-979

Docket Nº:18-979
Opinion Judge:POOLER, CIRCUIT JUDGE:
Party Name:DANIELLE LENZI, Plaintiff-Appellant, v. SYSTEMAX, INC., RICHARD LEEDS, Chairman and CEO (and in his individual capacity), LAWRENCE P. REINHOLD, Executive Vice- President and Chief Financial Officer (and in his individual capacity), Defendants-Appellees. [1]
Attorney:PERRY S. FRIEDMAN, New York, N.Y., for Plaintiff- Appellant Danielle Markou. MARK S. MANCHER, Jackson Lewis P.C. (Collin O'Connor Udell, on the brief), Melville, N.Y., for Defendants-Appellees Systemax, Inc., Richard Leeds, and Lawrence P. Reinhold. BARBARA L. SLOAN, U.S. Equal Employment Opportu...
Judge Panel:Before: KEARSE, POOLER, and WESLEY, Circuit Judges.
Case Date:December 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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DANIELLE LENZI, Plaintiff-Appellant,

v.

SYSTEMAX, INC., RICHARD LEEDS, Chairman and CEO (and in his individual capacity), LAWRENCE P. REINHOLD, Executive Vice- President and Chief Financial Officer (and in his individual capacity), Defendants-Appellees. 1

No. 18-979

United States Court of Appeals, Second Circuit

December 6, 2019

Argued: April 17, 2019

Appeal from the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, J.) granting summary judgment for Defendants- Appellees Systemax, Inc., Richard Leeds, and Lawrence Reinhold, and dismissing Plaintiff-Appellant Danielle Markou's (née Lenzi) claims under the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d)(1), 215(a)(3), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a), the Pregnancy Discrimination Act of 1978, id. § 2000e(k), the whistleblower protections of the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. § 2087, and related provisions of the New York State Labor Law and New York State Human Rights Law.

Markou claims, in sum and substance, that Defendants-Appellees paid her less than they would have if she were a man, retaliated against her when she raised concerns about her disparate pay and possible Consumer Product Safety Act violations, and fired her because she was pregnant. The district court held that Markou failed to establish a prima facie case for each of her claims. Because we conclude that there was sufficient evidence to support a prima facie case for Markou's Pregnancy Discrimination Act and Title VII claims, but insufficient evidence to support her Consumer Product Safety Improvement Act whistleblower retaliation claim, we vacate in part the judgment of the district court and remand for further proceedings. We write to clarify that, to establish a prima facie pay discrimination claim under Title VII, a plaintiff need not first establish an Equal Pay Act violation-that is, that she performed equal work but received unequal pay. Rather, all Title VII requires a plaintiff to prove is that her employer "discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex." 42 U.S.C. § 2000e-2(a)(1). Moreover, we have not yet had occasion to determine what framework applies to Consumer Product Safety Improvement Act whistleblower retaliation claims and now adopt the framework applicable to Sarbanes-Oxley Act of 2002 whistleblower retaliation claims, 18 U.S.C. § 1514A(a).

Affirmed in part, vacated in part, and remanded.

PERRY S. FRIEDMAN, New York, N.Y., for Plaintiff- Appellant Danielle Markou.

MARK S. MANCHER, Jackson Lewis P.C. (Collin O'Connor Udell, on the brief), Melville, N.Y., for Defendants-Appellees Systemax, Inc., Richard Leeds, and Lawrence P. Reinhold.

BARBARA L. SLOAN, U.S. Equal Employment Opportunity Commission (James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, Anne W. King, on the brief), Washington, D.C., amicus curiae in support of Plaintiff- Appellant Danielle Markou.

Before: KEARSE, POOLER, and WESLEY, Circuit Judges.

POOLER, CIRCUIT JUDGE:

Plaintiff-Appellant Danielle Markou (née Lenzi) appeals from the March 9, 2018, judgment of the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, J.) granting summary judgment for Defendants- Appellees Systemax, Inc. ("Systemax"), Richard Leeds, and Lawrence Reinhold (collectively, "Defendants") and dismissing Markou's claims under the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d)(1), 215(a)(3) (the "EPA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a) ("Title VII"), the Pregnancy Discrimination Act of 1978, id. § 2000e(k) (the "PDA"), 2 the whistleblower protections of the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. § 2087 (the "CPSIA"), and related provisions of the New York State Labor Law and New York State Human Rights Law ("NYSHRL").

Markou claims, in sum and substance, that Defendants paid her less than they would have if she were a man, retaliated against her when she raised concerns about her disparate pay and possible Consumer Product Safety Act violations, and fired her because she was pregnant. The district court held that Markou had failed to establish a prima facie case for each of her claims. Because we conclude that there was sufficient evidence to support a prima facie case for Markou's PDA and Title VII claims, but insufficient evidence to support her CPSIA whistleblower retaliation claim, we vacate in part the judgment of the district court and remand for further proceedings.3 We write to clarify that, to establish a prima facie pay discrimination claim under Title VII, a plaintiff need not first establish an EPA violation-that is, that she performed equal work but received unequal pay. Rather, all Title VII requires a plaintiff to prove is that her employer "discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex." 42 U.S.C. § 2000e-2(a)(1). Moreover, we have not yet had occasion to determine what framework applies to CPSIA whistleblower retaliation claims and now adopt the framework applicable to Sarbanes-Oxley Act of 2002 whistleblower retaliation claims, 18 U.S.C. § 1514A(a).

BACKGROUND

I. Factual Background

We draw the following factual background from the summary judgment record viewed in the light most favorable to Markou, the non-moving party. See, e.g., Mitchell v. City of New York, 841 F.3d 72, 75 (2d Cir. 2016).

A. Markou's Compensation

On January 22, 2008, Markou accepted a position at Systemax as Director of Risk Management. At the beginning of 2011, Systemax promoted her to Vice President of Risk Management and raised her salary. In March of 2011, [4] Markou met with Reinhold-Systemax's CFO, to whom Markou reported directly-to discuss her new role and to ask about her raise. She was surprised to learn that the raise had already gone into effect because it was so modest that she had not noticed it in her paycheck. Markou told Reinhold that she "was concerned that [she] wasn't paid relative to [her] peers" and that she "wanted to be treated similarly to the males." App'x at 423. When Reinhold failed to follow up, Markou contacted Leeds, Systemax's chairman and CEO. In August of 2011, following Markou's conversation with Leeds, Systemax gave Markou a more substantial salary increase. Systemax subsequently raised Markou's salary again in 2012 and 2013.

These pay raises notwithstanding, Systemax paid Markou significantly less than other, male department heads who reported to Reinhold. In fact, while Systemax (with limited exception) paid Markou's male executive-level peers salaries that exceeded the market rate for their respective positions, it paid Markou at a below-market rate.5 For example, in 2013, Systemax paid Markou $191, 000, while the benchmark salary for her position was $218, 200-a $27, 200 difference. In contrast, Systemax paid Benjamin White, Vice President of Internal Audit, $262, 000-$32, 300 more than the $229, 700 benchmark salary for his position; it paid Thomas Axmacher, Vice President and Controller, $308, 000- $40, 700 more than the $267, 300 benchmark salary for his position; it paid Robert Baker, European Controller, $288, 000-$13, 100 more than the $274, 900 benchmark salary for his position.6

Markou continued to raise concerns about pay disparity throughout her tenure at Systemax. For example, in January of 2013, she sent Reinhold an email outlining her achievements at the company and expressing her hope that they "put [her] on par with [her] peer group on the management team and that [her] pay [would be] commensurate." App'x at 130-31. More generally, according to Leeds, Markou "complained all the time" about her pay. App'x at 389.

B. The Whistleblower Email

On March 29, 2013, Markou sent an email to Leeds raising two relevant concerns. The first related to staffing issues that the resignation of another Systemax employee, Robert Wagner, had created. Systemax had hired Wagner to handle safety and workers' compensation matters, but Wagner left Systemax because the company began requiring him to also work on product compliance matters. Markou explained that, since Wagner resigned, there was no "product compliance since there is no one to man the function." App'x at 143. She further noted that, although Systemax had authorized her to hire two part-time employees at $70, 000 each to replace Wagner, that was an insufficient salary to attract prospective employees for the safety and product compliance positions.

The second concern Markou raised in her email to Leeds related to her compensation-a concern that Markou felt Systemax was inadequately addressing. She wrote to Leeds, "Relative to my peer group as...

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