The EEOC’s complaint against the Port Authority of New York and New Jersey contained two claims, one under the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (EPA), and one under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.(ADEA). The district court dismissed the Commission’s EPA claim on May 17, 2012. Appendix (“A”)-114 (Memorandum and Order (“Mem.”) at 16-17). The parties later stipulated to a voluntary dismissal of the Commission’s ADEA claim. A-116-117. The district court entered final judgment on May 31, 2013. A-118. The Commission filed a timely notice of appeal on July 12, 2013. A-119.

The district court had jurisdiction under 28 U.S.C. § 1331 (federal question) and § 1345 (United States a party). This Court has jurisdiction under 28 U.S.C. § 1291, the final judgment rule.

An employer may violate the EPA if it pays female workers less than it pays male workers for doing the same job. Here, the Commission alleges that the Port Authority violated the EPA by paying its female nonsupervisory attorneys less than its male nonsupervisory attorneys. The district court dismissed the Commission’s claim, finding it implausible that the female and male attorneys being compared actually performed the same job, since some of the comparators practiced in different substantive areas. However, the EEOC’s Complaint, along with its Responses to Port Authority’s interrogatories, contained facts suggesting that the Port Authority pays all its nonsupervisory lawyers without regard to practice area. That is, for pay purposes, at the Port Authority, “a lawyer is a lawyer is a lawyer,” irrespective of whether the attorney litigates or does transactional work, or practices environmental law or labor law.

Did the district court err in holding that the Commission’s complaint failed to state a plausible claim under the EPA, where the facts in the complaint, taken as true, show that the Port Authority does not consider practice area in setting compensation?

statement of the case

A. Course of Proceedings

This is an appeal from an order of the United States District Court for the Southern District of New York, Buchwald, J., granting the Port Authority’s motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). The Commission filed this action on September 29, 2010, alleging that the Port Authority violated the EPA by paying a group of female nonsupervisory attorneys less than male nonsupervisory attorneys performing substantially equal work. A-9. The Port Authority filed its Answer on January 21, 2011, (District Court docket entry number (“R.”)7), and an amended Answer on January 31, 2011. A-17.

On May 11, 2011, the Port Authority requested leave of court to file a Rule 12(c) motion to dismiss the EPA claim for failure to state a claim, arguing that the EEOC’s failure to list male comparators and facts describing how the jobs the male and female attorneys perform are substantially equivalent rendered the complaint insufficient. See R.23-1 at 12. The court denied that request but directed the Commission to respond to contention interrogatories so that the Port Authority could better determine the grounds for the EEOC’s EPA claim. A-75-76 (June 7, 2011 Hearing Transcript at 2-3). The Commission responded to the interrogatories in a 47-page document listing male comparators for each female complainant and providing facts describing how the female claimants’ and male comparators’ jobs are substantially equivalent. A-25.

The Port Authority then filed a Motion for Partial Summary Judgment on the Pleadings Pursuant to Rule 56. R.21. The Commission cross-moved for discovery pursuant to Fed. R. Civ. P. 56(d). R.29-30. During oral argument on the motion, the parties agreed to treat the Port Authority’s filing as a motion to dismiss under Rule 12(c) and that the EEOC’s Responses to the Port Authority’s contention interrogatories would be construed as the equivalent of an amended complaint. See A-99 (Mem. at 1 n.2).

On May 17, 2012, the district court granted the Port Authority’s motion for judgment on the pleadings with respect to the EPA claim, holding that the Commission failed to allege a plausible violation of the Equal Pay Act because the jobs in question did not entail sufficiently similar skills or effort. A-108-09. The court denied the Commission’s motion for discovery as “procedurally improper.” A-1-2 n.2. This appeal followed. A-119.

B. Statement of the Facts

The EEOC’s complaint alleges that “[s]ince at least January 1, 2006,” the Port Authority “has paid and continues to pay wages to its nonsupervisory female attorneys at rates less than the rates paid to male employees in the same establishments for substantially equal work for jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions” in violation of the EPA. A-11-12 (¶ 10(a)). The complaint also states that the Port Authority “has paid and continues to pay non-supervisory female attorneys yearly salaries that are thousands of dollars less than the salaries paid to non-supervisory male attorneys who have substantially similar lengths of service and experience.” Id. at A-12 (¶ 10(b)). The complaint adds that the Port Authority “has paid and continues to pay a class of non-supervisory female attorneys less than male attorneys having the same job code,” and that the “disparity in pay cannot be attributed to factors other than sex.” Id. (¶¶ 10(c)-(d)).

The Port Authority’s amended answer “admits that the Commission has brought an action for alleged unlawful payment of wages” and “admits that this is a civil action purportedly brought pursuant to the [EPA].” A-17. The answer also avers generally that the Port Authority could establish the EPA’s affirmative defenses. See id. at A-21-22.

The EEOC’s 47-page Objections and Responses to Defendant’s Contention Interrogatories (“Responses”) name fourteen female non-supervisory attorneys paid less than male non-supervisory attorneys. See A-33. The Responses contain a chart listing the claimants, their comparators, beginning date of service with the Port Authority, date of admission to the bar, and legal department where the individual worked. The fourteen female attorneys work in an array of different departments or practice areas within the Port Authority’s legal department, such as “Opinions & Appeals,” “Real Estate, Leases, and Environmental Law,” “Commercial Litigation,” “Employment and Labor Law,” “Maritime and Aviation,” etc. A-36-47. However, the EEOC’s Responses explain that the Port Authority considers nonsupervisory attorney positions for pay purposes to require the same skills, effort, and responsibility regardless of department or legal specialty.

The EEOC’s Responses assert that the women claimants and male comparators have substantially equal skill because their jobs do not require different experience, training, education, or ability. A-60. The Responses allege that the amount and degree of skill required for the claimants and comparators’ jobs are substantially equivalent. Id. Specifically, the jobs require:

n the same professional degree and admission the bar. A-60.

n problem-solving and analytical skills to identify, research, analyze, evaluate, and resolve legal issues clearly and persuasively. Id.

n the use of professional judgment and legal skills to draft, review, and implement legal documents. Id.

n the ability to understand and comply with department, agency, and legal instructions and procedures. Id.

n the ability to consult with and provide legal advice to the same client, the Port Authority. Id.

n the ability to interact and consult with outside legal staff or other Port Authority attorneys on client matters. Id.

n the same degree of diligence and persistence. Id.

n the ability to manage time, meet deadlines, and prioritize assignments. Id.

The EEOC’s Responses also note that the claimants and comparators are “in the same job grade or code” and share the same position title. A-61. The Reponses note that the applicable “attorney maturity curve” used by the Port Authority in setting compensation does not differentiate between divisions when setting a lower and upper limit on salaries based on years of legal experience. Id. The Responses assert that the duties of the jobs are the same and similar performance objectives are applied across the jobs. Id. at A-62. It notes that there are no job descriptions identifying different duties for the jobs. Id. The Responses also state that “[t]he same criteria are used across all jobs to evaluate performance competencies, including project management, resource management, decision making and problem solving, technical expertise/background, communication, customer service, flexibility and adaptability, persuasion and influence, interpersonal skills, political acumen, and professional demeanor.” Id. Additionally, the Responses allege that “Attorneys have also moved around to work in various subject areas in Defendant’s legal department, and Defendant itself admitted that these types of transfers are ‘made consistent with the job duties of an attorney.’” Id. at 62-63.

The Responses also allege that the claimants’ and comparators’ jobs require the same effort, or physical or mental exertion, given that the jobs are “performed under time pressures and deadlines” and “require the same problem-solving and analytical efforts, the same efforts to draft, review, and implement legal documents, the same efforts to consult with and provide legal advice to the Port Authority, and the same efforts to interact and consult with outside legal staff or other Port Authority attorneys on client matters.” A-63-64.

The Responses also contend that the claimants and comparators’ jobs require the same degree of responsibility, accountability, and supervision in that the jobs “are all non-supervisory and have substantially the same reporting structure and the same level of supervision,” and “are of equal significance to the Defendant.” A-64-65. Additionally, the claimants’ and comparators’ jobs entail making “decisions that affect the Port Authority’s rights and liabilities,” and require “independent judgment and discretion subject to the same level of oversight and supervision.” Id.

The Responses allege that the claimants’ and comparators’ jobs are performed under the same working conditions as attorneys all work “out of the same office, in a legal setting customarily used by attorneys, and none of [them] were regularly exposed to different physical surroundings . . . .” A-65-66.

Further, according to the Responses, “[t]he claimants have had substantially similar or higher seniority, years of experience, and performance as compared to their comparators, and there is no evidence that any of these factors resulted in a non-gender difference in pay.” Id. at A-69. While the Responses contain numerous facts showing that the Port Authority did not consider the practice area in setting compensation, the Responses nevertheless revealed instances in which female attorneys were paid less than male attorneys working in the same specialty. A-34-58. For example:

n Joan Bennett, in the Opinions & Appeals Department, earned a yearly salary of $116,116 while Arnold Kolikoff, also in the Opinions & Appeals Division, earned $167,310. See A-34-35.

n Angela Calamia, in the NY Litigation department, earned $115,986 annually while Thomas Hoey, Jr. earned $121,888 while working in the NY Litigation department. See A-35.

n Lynda Calore earned $118,118 per year in the Real Estate, Leases, and Environmental Law department while Paul Nguyen earned $141,102 in the same department. A-36, 38-39.

n Kathleen Collins earned $121,680 and Valerie Mauceri earned $119,392 annually in the Commercial Litigation department while Jordan Newman earned $147,498; Ezra Bialik earned $143,494; and Jay Selcov earned $167,362 (all three also in the Commercial Litigation department). A-36-37.

n Laurie Fornabai earned $143,104 in the Employment & Labor department while Philip Kellett earned $151,164 in that department. A-37.

n Leslie Lyken Fields earned $145,262 in the Real Estate, Leases and Environmental Law while Ronald Senio earned $155,220 in that same department. A-38.

n Sandra Otero earned $133,068 in the Corporate Governance & Commercial Transaction department while Howard Kadin earned $166,478 in that department. A-40.

n Shirley Spira and Dolores Ward earned $98,514 and $88,348, respectively, in the NJ Solicitor department while Joseph Smyth earned $115,804 in that section. A-41, 42-43.

n Allison Voetsch earned $66,846 in the Public Securities Law section while Sam Stanton earned $97,864 in the same department. A-41-42.

n Joan Bennett switched to the Litigation department and earned $127,738 annually while Jordan Newman was making $147,498 and Jay Selcov was making $172,380 as litigators. A-43.

n Carole Margetson was making $121,732 in the ARC, Rail Transit & TB&T division while Brian Smith was earning $142,532 in that department. A-45-46, 48.

In addition, the EEOC’s Responses allege that some claimants have a male comparator who is in the same practice area or legal unit as the claimant with less seniority and experience than the claimant but who is earning more than the claimant. For example:

n Joseph Smyth had significantly less seniority at the Port Authority and was admitted to practice after Dolores Ward. Though they both worked in the NJ Solicitor division in 2007, he earned $115,804 while she earned $88,343. A-42-44.

n Arnold Kolikoff, who has less seniority and experience than Leslie Lyken, earned $173,160 compared to her $156,156 . A-47. Although he worked in Federal & State Regulatory & Compliance and she in ARC, Rail Transit & TB&T, both departments were part of the Business Transactions & Regulatory Compliance unit. R.31-17 (Organizational Chart).

n Philip Kellett had less seniority and experience than Joan Bennet yet earned $162,734 in the Employment Law department compared to her $137,956 salary in the Labor Relations department . A-54-55. Both departments were part of the Employment Relations Unit. R.31-19 (Organizational Chart).

C. District Court Decision

In dismissing the EEOC’s EPA claim, the district court faulted the Commission for “treating ‘all of the non-supervisory attorney jobs in [the] law department [as] substantially equivalent and requir[ing] the same skill, effort, and responsibility.’” A-103. The court held that the Commission’s “allegations of equal work” as stated in the complaint “are insufficient,” and merely track the language of the EPA. Id. at A-104. In the court’s view, the allegations that the attorneys being compared “‘have substantially similar lengths of service and experience’ and ‘hav[e] the same job code’. . . do not speak at all to the effort or responsibility required of the jobs, and they mention the requisite skill only cursorily.” Id. at A-108 (quoting the EEOC’s Complaint). Without more, the court ruled, the Commission’s Complaint was “insufficient to meet the plausibility and fair notice standard.” Id.

The district court determined that the EEOC’s Responses to the contention interrogatories “readily rectify the deficiencies in the complaint with respect to responsibility.” A-108. The district court noted that the EEOC’s Responses state that the jobs “‘are all nonsupervisory and have the same reporting structure and the same level of supervision,’” and “require Port Authority attorneys ‘to be able to respond to and act on behalf of the General Counsel’ in a way that ‘affect[s] the Port Authority’s rights and liabilities.’” Id. According to the court, these allegations “are specific to Port Authority attorneys and directly address the jobs’ ‘degree of accountability’ and ‘importance of the job obligation.’” Id. at A-108-09 (quoting 29 C.F.R. § 1620.17(a)).

But in the court’s view, the EEOC’s Responses addressing the skill and effort required of the Port Authority’s non-supervisory attorneys “do little more than recite broad generalities about attorneys in general, rather than say anything about Port Authority’s attorneys in particular.” A-109. The court maintained that even if, as the EEOC alleged, the attorneys in the agency’s law department all have the same professional degree and admission to the bar, utilize problem-solving and analytical skills, as well as professional judgment and legal skills, and work under time pressures and deadlines, “the same may be said of virtually any practicing lawyer.” Id. The court explained, “[w]e are hard-pressed to deem a listing of these abstract generalities a true comparison of the content of the jobs at issue, and the few nods to Port Authority in the descriptions . . . do not persuade us otherwise.” Id.

The court rejected the Commission’s argument that because the Port Authority does not itself differentiate between its attorneys, the agency must concede that the jobs in the law department require the same skill, effort, and responsibility. A-110. The court reasoned that “blandly generic” categories such as “project management,” “communication,” “flexibility and adaptability,” “efficiency and timeliness,” and “attendance,” while “nominally identical, may be used to evaluate different employees on different scales.” Id. at A-111. The court opined that “[t]he expectations for a newly hired contract attorney with respect to managing projects may – and should – be vastly different from those for a senior appellate litigator.” Thus, the court concluded, “[t]hat they are used as guidelines for evaluating all of Port Authority’s attorneys . . . does not shed light on whether the attorneys are actually evaluated against the same reference points.” Id.

The court was similarly not persuaded by the EEOC’s allegations that because the work performed by the complainant attorneys and their male comparators does not fall into specific divisions within the law department and that divisions have been consolidated over time, the attorney jobs are fungible, and therefore substantially equivalent. A-112. The court stated that, “[w]hile it suggests that comparators need not necessarily be drawn from the same department as the claimant, it does not speak to the actual content of the jobs.” Id. The court added that the fact that “attorneys may be moved between divisions does not mean that all attorneys at Port Authority are required to have the same skills” since “[l]ateral moves between subject areas may require different skill sets and levels of effort, . . . and only be asked of those who have the ability to satisfy the requirements.” Id. (citing EEOC Compliance Manual and 29 C.F.R. § 1620.15(a)). According to the court, “[t]his allegation blurs the lines between divisions, but it does not demonstrate that, at Port Authority, any given attorney does the same work as all other attorneys.” Id.

The court found the fact that the agency’s “maturity curve” does not use an attorney’s division in setting a potential pay range was “the most persuasive [fact alleged] but, ultimately, also [still] fails to sustain the EEOC’s complaint.” Id. at A-113. The court determined that “the maturity curve’s failure to explicitly account for divisions does not indicate that Port Authority does not utilize an attorney’s division or other factors in setting wages.” Id. It surmised that “[t]he maturity curve specifies ranges of possible salaries based on experience” and that “determinations of specific salaries within those ranges must be based on other factors.” Id. According to the court, the Commission “alleged without substantiation that those determinations [of specific salaries within ranges] are based on sex, but—without any analysis of job content—we cannot rely on that bald assertion.” Id.

The court found that the “facts as a whole” did not “support the idea that Port Authority’s attorneys are paid without respect to a multitude of legitimate factors.” A-113-14. In the court’s view, “[i]t strains credulity to argue that Port Authority, which does not set wages based on a lockstep scale, does not factor into its pay decisions the kind and quality of work its attorneys perform” and the “allegations as a whole simply do not rise to the requisite level of facial plausibility.” Id. at 114. The court concluded that, although the EEOC conducted a three-year investigation in this matter, it nonetheless had failed to state an EPA claim. Id.

standard of review

A district court’s decision to grant a motion for judgment on the pleadings pursuant to Rule 12(c) is reviewed de novo. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). This court applies the same standard applicable to dismissals pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor. Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009); see also DeMuria v. Hawkes, 328 F.3d 704, 706 n.1 (2d Cir. 2003) (noting that the legal standards of review for motions to dismiss and motions for judgment on the pleadings “are indistinguishable”).

summary of argument

The allegations stated in the Commission’s Complaint and Responses to Contention Interrogatories state a plausible claim under the Equal Pay Act. The EEOC’s Complaint offers sufficient facts to make out a claim for relief plausible on its face and gives the Port Authority fair notice of what the claim is and the grounds upon which it rests. The Complaint identifies the time period of discrimination, the employees and jobs at issue, and the nature of the discrimination alleged: male nonsupervisory attorneys are paid more than female nonsupervisory attorneys with comparable lengths of service and experience. These simple, brief factual recitations are more than adequate to meet the pleading requirements of Rule 8, and to survive a motion to dismiss under Rule 12. Additionally, the Commission’s forty-seven-page Responses, which are being treated as an amendment to the Complaint, identify male comparators for each female complainant and provide detailed factual assertions explaining how the jobs are substantially equivalent in terms of skill, effort, and responsibility. The Responses also offer facts that nonsupervisory attorneys have the same job title and code, that they move among legal divisions, that their salary is assigned via the Port Authority’s “maturity curve” using years of legal experience without reference to the substantive legal division assigned, and that the nonsupervisory attorneys are evaluated using the same criteria regardless of area of practice. These facts, if credited by the court, establish a prima facie violation of the EPA. Indeed, this showing goes beyond that required under Supreme Court and Second Circuit jurisprudence.

The district court’s dismissal stemmed from the court’s subjective belief that the Commission’s EPA claim lacks merit. The court was openly skeptical of the Commission’s theory—that when it comes to paying the Port Authority’s non-supervisory attorneys, “a lawyer is a lawyer is a lawyer,” regardless of department, despite the Commission’s detailed allegations that this was indeed the case at the Port Authority. And while the court was of course entitled to apply its common sense and judicial experience in assessing the plausibility of the EEOC’s claim, that cannot override the abundant facts the Commission pled in its Complaint and Responses. Accordingly, the district court’s grant of the Port Authority’s Rule 12(c) motion to dismiss must be reversed.

argument

The district court erred in dismissing the Commission’s Equal Pay Act claim because the facts contained in the Complaint and the Responses to Interrogatories, if accepted as true, make it plausible that the Port Authority’s female nonsupervisory attorneys perform work that requires substantially similar skill, effort, and responsibility as the work performed by comparable male nonsupervisory attorneys.

The district court granted Port Authority’s motion to dismiss after finding that it was not plausible that the jobs performed by the claimant attorneys and their male comparators required equal “effort” and “skill.” In reaching this result, the court misconstrued the substantive standards governing the Commission’s EPA claims, and effectively required the EEOC to plead a prima facie case. In failing to find the EEOC’s claims plausible, the court refused to credit the EEOC’s ample factual allegations as true. Instead, the district court substituted its own, unsubstantiated, hypothesis to explain the wage disparities at issue, and dismissed the EEOC’s EPA claims based on its disbelief in the ultimate merits of those claims. These errors require reversal.

Under Federal Rule of Civil Procedure 8(a)(2), a civil complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court in Bell Atlantic Corp. v. Twombly explained that to survive a motion to dismiss for failure to state a claim, a complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . .” 550 U.S. 544, 555 (2007) (internal quotation marks omitted). In Ashcroft v. Iqbal, the Court elaborated that the complaint must “contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Twombly and Iqbal require . . . factual amplification [where] needed to render a claim plausible.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009).

The “plausibility” determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-64. However, an employment discrimination complaint need not include facts establishing a prima facie case of discrimination under the McDonnell Douglas framework. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (explaining that the McDonnell Douglas framework is an evidentiary standard, not a pleading requirement). A complaint “attacked by a [motion to dismiss for failure to state a claim] does not need detailed factual allegations” of any kind. Twombly, 550 U.S. at 555. Rather, the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . .” Id.; Arista Records, LLC v. Doe 3, 604 F.3d 110, 120-21 (2d Cir. 2010) (rejecting the defendant’s contention that Twombly and Iqbal require pleading specific evidence or extra facts beyond what is needed to make the claim plausible); Chase Group Alliance LLC v. City of New York Dept. of Finance, 620 F.3d 146, 150 (2d Cir. 2010) (A complaint may be dismissed for failure to state a claim “only if the plaintiff fails to provide factual allegations sufficient to raise a right to relief above the speculative level.”).

Judges may not grant motions to dismiss based merely on their “disbelief of a complaint’s factual allegations” and “a well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 555 (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (internal quotation marks omitted). As the Second Circuit has instructed, Iqbal and Twombly “have rendered even more important (and more difficult) both trial judges’ adherence to the most fundamental pleading principles – namely, accepting as true all factual allegations and drawing all reasonable inferences from those facts in plaintiffs’ favor – and appellate judges’ subsequent de novo review of the decisions of the district courts.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 n.10 (2d Cir. 2011); see also Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (“Although evaluating the plausibility of a legal claim ‘requires the reviewing court to draw on its judicial experience and common sense,’ the court may not disregard properly pled factual allegations, ‘even if it strikes a savvy judge that actual proof of those facts is improbable.’”) (quoting Iqbal and Twombly).

Here, the district court misapplied these pleading principles. To establish a prima facie case of wage discrimination under the EPA, a plaintiff must show (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. 29 U.S.C. § 206(d)(1); see also Lavin-McEleney v. Marist College, 239 F.3d 476, 480 (2d Cir. 2001). The “equal work standard does not require that compared jobs be identical, only that they be substantially equal.” 29 C.F.R. § 1620.13; see also Lavin-McEleney, 239 F.3d at 480 (“A plaintiff need not demonstrate her job is identical to a higher paid position, but only must show that the two positions are ‘substantially equal’ in skill, effort, and responsibility.”); Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995) (same). Whether two positions are “substantially equivalent” is a question of fact for the jury. Lavin-McEleney, 239 F.3d at 480; Tomka, 66 F.3d at 1311.

The EEOC’s Complaint and Responses to Port Authority’s Contention Interrogatories contain enough facts to allege an EPA claim that is “plausible on its face.” Twombly, 550 U.S. at 570. The Complaint alleges that Port Authority has paid and continues to pay its nonsupervisory female attorneys less than it pays male nonsupervisory attorneys who have the same job code and who have substantially similar lengths of service and experience. A-11-12. This, alone, gives Port Authority sufficient notice of the factual basis for the claim and meets the plausibility threshold of Twombly and Iqbal.[1] Further, even if these allegations in the Complaint itself are insufficient, the EEOC’s 47-page Responses—detailing comparators for each complainant and setting out the common duties and tasks performed by all nonsupervisory attorneys—demonstrate the plausibility of the Commission’s claim that the claimants and their comparators performed jobs requiring equal work.

The district court erroneously required more to plead a plausible claim of wage discrimination. The court analyzed in great detail each element of an EPA prima facie case and concluded that the EEOC’s allegations were inadequate to meet the equal “skill” and “effort” components. (It correctly held that the EEOC’s Complaint, as amended by the Response to Port Authority’s contention interrogatories, satisfies the equal “responsibility” requirement under the EPA. A-108-09). By requiring the Commission to meet each sub-element of the prima facie case at the pleading stage, the court contravened the Supreme Court’s ruling in Swierkiewicz. See 534 U.S. at 508 (holding that employment-discrimination plaintiffs do not need to plead a prima facie case of discrimination). The court also insisted on more factual minutiae at the pleading stage than Iqbal and Twombly require. See Twombly, 550 U.S. at 555 (a complaint does not need “detailed factual allegations”). These legal errors, which tainted the court’s entire analysis, warrant reversal.

But even assuming an EPA plaintiff must plead facts to suggest it is plausible that the relevant jobs required equal effort and skill, the Commission did so. “Effort” refers to the “physical or mental exertion needed for the performance of a job,” and includes consideration of job factors that cause mental fatigue and stress, as well as those that alleviate fatigue. 29 C.F.R. § 1620.16(a). The Commission alleges that the women claimants and male comparators “performed under time pressures and deadlines” and “require the same problem-solving and analytical efforts, the same efforts to draft, review, and implement legal documents, the same efforts to consult with and provide legal advice to the Port Authority, and the same efforts to interact and consult with outside legal staff or other Port Authority attorneys on client matters.” See A-63-64. This is enough to make a plausible showing of equal “effort.” While the district court recited the proper standard for evaluating equal effort, A-107, it provided little explanation or analysis as to why that standard had not been met in this case.

“Skill” within the meaning of the EPA includes consideration of factors such as experience, training, education, and ability measured by what is required to do the specific job. See 29 C.F.R. § 1620.15(a). Thus, “[i]f an employee must have essentially the same skill in order to perform either of two jobs, the jobs will qualify under the EPA as jobs the performance of which requires equal skill.” Id. Again, the district court recited the correct standard. A-107. But it committed legal error in concluding that the Commission’s Complaint and Responses could not plausibly meet this statutory test.

Here, the EEOC’s Responses allege that the attorney jobs being compared require a law degree and admission to the bar. See A-60. The Responses also allege that all nonsupervisory attorneys have to perform the same basic tasks: They “identify, research, analyze, evaluate, and resolve legal issues clearly and persuasively”; “draft, review, and implement legal documents”; “consult with and provide legal advice to the same client, the Port Authority”; and “consult with outside legal staff or other Port Authority attorneys on client matters.” Id. This is enough to make a plausible showing of equal “skill” within the meaning of the EPA. See Marshall v. Bldg. Maint. Corp., 587 F.2d 567, 571 (2d Cir. 1978) (court looked to job content and tasks performed by plaintiff versus male comparators); cf. Rizzo v. Kraus Organization, No. 10-CV-272, 2010 WL 2427434, at 3 (E.D.N.Y. May 25, 2010) (holding that assertions in the complaint that plaintiff attorney and male comparator, a paralegal, performed similar duties such as legal research and advocating for the defendant before adjudicative bodies “satisfy plaintiff’s minimal burden to allege substantial similarity”); Ebbert v. Nassau County, No. 05-cv-5445, 2009 WL 935812, at 4 (E.D.N.Y. Mar. 31, 2009) (plaintiffs, female Police Communication Officers, offered evidence that they perform essentially the same functions and tasks as male comparators, who were Fire Communications Technicians, since both answer emergency calls, take information regarding the nature of the emergency and enter the information into a computer system, and both dispatch emergency personnel if appropriate).

In ruling otherwise, the district court misconstrued the meaning of equal “skill” under the EPA. The district court rejected reflexively the idea that attorneys working in different substantive areas could ever possess equal “skill.” See, e.g., A-111 (“The expectations for newly hired contract attorney with respect to managing projects may – and should – be vastly different from those for a senior appellate litigator.”).

However, in many instances, the complainants had male comparators within the same legal division or unit – a fact the district court ignored altogether. For example, Joan Bennett, in the Opinions & Appeals Department, earned a yearly salary of $116,116 while Arnold Kolikoff, also in the Opinions & Appeals Division, earned $167,310. See A-107-08. And Angela Calamia, in the NY Litigation department, earned $115,986 annually while Thomas Hoey, Jr. earned $121,888 while working in the NY Litigation department. A-35. Additionally, several men were earning more than comparable women despite having fewer years of legal experience and seniority with the Port Authority. For example, Joseph Smyth has less seniority at the Port Authority and was admitted to practice law long after Dolores Ward. Though they both worked in the NJ Solicitor division in 2007, he earned $115,804 while she earned $88,343. A-42-43. While discovery is expected to delineate the most appropriate comparators, the Responses offer more than enough facts to withstand dismissal. See A-35. See L-7 Designs, 747 F.3d at 429 n.10 (courts must adhere to fundamental pleading principle to credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations); Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (“It is important to recognize the difference between disposing of a case on a [motion to dismiss] and resolving the case later in the proceedings, for example, by summary judgment.”).

Moreover, we are aware of no federal case holding that lawyers practicing different kinds of law or practicing in different ways (e.g., litigating versus performing transactional work) are inevitably invalid comparators for purposes of the EPA. Existing case law suggests otherwise. See, e.g., Dubowsky v. Stern, Lavinthal, Norgaard & Daly, 922 F. Supp. 985, 992 (D.N.J. 1996) (in denying summary judgment to the defendant on the “equal work” question, court rejected the defendant’s contention that male litigators’ jobs were more stressful and thus substantially different from plaintiff’s position doing primarily transactional work, noting that the work performed by the plaintiff involved its own set of pressures and involved deadlines, late hours, and weekend work); Kozlowski v. Fry, 238 F. Supp. 2d 996, 1020 (N.D. Ill. 2002) (determining that female attorney supervisors’ duties were substantially similar to male comparators in different divisions of public defender’s office and stating “[a]lthough the departments are different, the type of law being practiced is different, and the client population is different, the proper test is whether the duties were ‘substantially similar,’ not identical”); cf. Lavin-*McEleney, 239 F.3d at 481 (finding that professors in different departments performed substantially equivalent work); Ebbert, 2009 WL 935812, at 3 (“No case stands for the proposition that a woman performing the same job as a man cannot make a valid comparison simply because she works in a different department.”); 29 C.F.R. § 1620.14(c) (explaining “the fact that jobs are performed in different departments . . . would not necessarily be sufficient to demonstrate that unequal work is involved”); EEOC Compliance Manual on Compensation, Questions and Answers available at www.eeoc.gov/policy/docs/qanda-compensation.html (“The key is what people actually do on the job, not job titles or departmental designations.”).

At the very least, where the employer itself evaluates and pays employees in similar jobs using the same criteria, it is plausible the relevant jobs involve equal skill. See Tomka, 66 F.3d at 1311 (“‘In determining whether job differences are so substantial as to make jobs unequal, it is pertinent to inquire whether and to what extent significance has been given to such differences in setting the wage levels for such jobs. Such an inquiry may . . . disclose that apparent differences between jobs have not been recognized as relevant for wage purposes.’”) (quoting 29 C.F.R. § 1620.14); Beck-Wilson v. Principi, 441 F.3d 353, 360-61 (6th Cir. 2006) (evidence that employer treats jobs of physician assistant and nurse practitioner as “fungible” supports prima facie case of substantially equal work).

Here, the facts the EEOC provided indicate that the Port Authority considered lawyers working in different substantive areas and departments to be fungible. It transferred lawyers between different departments. It gave them all the same title, job “grade” or “code.” It evaluated them all using the same performance standards. Cf. 29 C.F.R. § 1620.15(a) (explaining that equal skill “must be measured in terms of the performance requirements of the job”). And it compensated them all without regard to differences in subject matter expertise or manner of practice. (For example, its litigators and transactional lawyers were paid according to the same scale.) Port Authority paid all its lawyers via a “maturity curve” that reflects years of legal experience – not variations in substantive knowledge. These facts thus make it plausible that the attorney jobs being compared require equal skill. See Lavin-McEleney, 239 F.3d at 481 (university’s departmental differences within divisions were not associated with different salaries); Tomka, 66 F.3d at 1311 (the defendant’s “decision to classify the jobs in the same compensation range is evidence that the purported differences between the positions may not be substantial”).

In rejecting these factual assertions, the district court disregarded key pleading rules. For example, although the court acknowledged that Port Authority evaluated all its attorneys under the same criteria (e.g., by assessing their proficiencies in “project management,” “communication” skills, “flexibility and adaptability,” etc.), it discounted this fact, finding that it “does not shed light on whether the attorneys are actually evaluated against the same reference points.” A-111. However, at the pleading stage, the court should have accepted the EEOC’s assertion that Port Authority attorneys are evaluated “against the same reference points” as true. See Anderson News, LLC v. American Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012) (“[I]n determining whether a complaint states a claim that is plausible, the court is required to proceed ‘on the assumption that all the [factual] allegations in the complaint are true.’”) (quoting Twombly, 550 U.S. at 555) (emphasis in original).

The court criticized the Commission for providing merely “a listing of these abstract generalities” that apply to “virtually any practicing lawyer.” A-109. But the fact that lawyers elsewhere may perform the same or similar tasks does not make it implausible that the attorney jobs being compared at the Port Authority are substantially equivalent. Quite the contrary: The fact that all lawyers perform the same or similar function(s) strongly suggests that most legal jobs involve the same “skill” – at least as that term of art is defined under the EPA. Legal “skill” for EPA purposes means core abilities, not subject matter expertise. See 29 C.F.R. §1620.15(a) (“Skill includes consideration of such factors as experience, training, education, and ability.”).

The court also concluded that “the fact that attorneys may be moved between divisions does not mean that all attorneys at Port Authority are required to have the same skills.” According to the court, “[l]ateral moves between subject areas may require different skill sets and levels of effort . . . and only be asked of those who have the ability to satisfy the requirements.” A-112 . Of course, nothing in the EEOC’s Complaint or Responses suggests that to be the case. By speculating about the criteria Port Authority might theoretically use in transferring lawyers between divisions, the court inappropriately substituted its version of the facts for the Commission’s amply supported allegations. “The choice between two plausible inferences that may be drawn from factual allegations is not a choice to be made by the court on a [motion to dismiss]. A court ruling on such a motion [to dismiss] may not properly dismiss a complaint that states a plausible version of the events merely because the court finds a different version more plausible.” Anderson News, 680 F.3d at 185 (internal citations omitted).

Similarly, the court recognized that the Commission’s Complaint and Responses suggest that Port Authority “blurs the lines between divisions,” but it ruled that this “does not demonstrate that, at Port Authority, any given attorney does the same work as all other attorneys.” Id. Yet at this preliminary pleading stage, the court should have drawn precisely the opposite and equally plausible inference – that since Port Authority itself does not distinguish between attorneys in different divisions for purposes of assignments or pay, all attorney jobs at Port Authority involve equal skill and effort. See Twombly, 550 U.S. at 555 (court is required to proceed “on the assumption that all the allegations in the complaint are true”); Iqbal, 556 U.S. at 679 (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”); L-7 Designs, Inc., 647 F.3d at 429 n.10 (stressing that trial judges must adhere “to the most fundamental pleading principles – namely, accepting as true all factual allegations and drawing all reasonable inferences from those facts in plaintiffs’ favor”).

The court conceded that the Commission’s contention regarding the “maturity curve” was “the most persuasive.” A-113. It nonetheless concluded that it, too, was unavailing. The court determined that “the maturity curve’s failure to explicitly account for divisions does not indicate that Port Authority does not utilize an attorneys’ division or other factors in setting wages.” Id. It reasoned that because the curve specifies ranges of possible salaries based on experience, determinations of specific salaries within those ranges “must be based on other factors.” Id. (emphasis added). The court then chastised the EEOC for making the “bald assertion” that “those determinations are based on sex.” Id.

Again, the district court was assuming facts outside the Complaint, and assuming that they must be favorable to the Port Authority. The court also effectively required the EEOC to prove, at the pleading stage, that the wage disparities at Port Authority were not based on factors other than sex. However, assuming the plaintiff makes out a prima facie case under the EPA, it is the defendant’s burden to prove one of the four statutory affirmative defenses. See Ryduchowski v. Port Authority of New York & New Jersey, 203 F.3d 135, 143 (2d Cir. 2000) (employer’s burden of establishing one of the four affirmative defenses to Equal Pay Act liability is a heavy one, because the statutory exemptions are narrowly construed). The court’s ruling effectively relieved Port Authority of this statutory burden, and at the pleading stage.

The district court dismissed the EEOC’s EPA claims because, at bottom, it did not believe those claims were meritorious. See A-113 (“More importantly, ‘the facts as a whole’ do not support the idea that Port Authority’s attorneys are paid without respect to a multitude of legitimate factors” and “[i]t strains credulity to argue that Port Authority . . . does not factor into its pay decisions the kind and quality of work its attorneys perform.”). Under Supreme Court and Second Circuit case law, this is an impermissible basis for granting judgment on the pleadings for failure to state a claim. See Twombly, 550 U.S. at 555; Anderson News, 680 F.3d at 185 (“Even if their truth seems doubtful, Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations.”). Although the court was entitled to apply its judicial experience and common sense in assessing the plausibility of the Commission’s claim, that cannot entirely supersede the extensive facts pled in the Complaint and Responses.

conclusion

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

DANIEL T. VAIL

Acting Assistant General Counsel

/s/ Julie L. Gantz

______________________________

JULIE L. GANTZ

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

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