Gender-Based Pay Discrimination Claims Continue Against CUNY – Part One (Equal Pay Act)

In Xanthakos v. City University of New York et al, 17-cv-9829, 2020 WL 5026930 (S.D.N.Y. August 24, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s gender-based pay discrimination claims under the Equal Pay Act (EPA), Title VII of the Civil Rights Act of 1964, 42 U.S.C. 1983, and the New York State and City Human Rights Laws.

The court summarized the legal principles and standards applicable to plaintiff’s Equal Pay Act claim:

The EPA provides that “[n]o employer having employees subject to any provisions of this section shall discriminate … between employees on the basis of sex.” 29 U.S.C. § 206(d)(1). To plead a violation of the EPA, a plaintiff must allege facts that plausibly show: “(i) the employer pays different wages to employees of the opposite sex; (ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (iii) the jobs are performed under similar working conditions.” Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). To survive a motion to dismiss, “a plausible EPA claim must include ‘sufficient factual matter, accepted as true’ to permit ‘the reasonable inference’ that the relevant employees’ job content was ‘substantially equal.’ ” E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 256 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678) (emphasis in original); see Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir. 2001) (noting that a plaintiff “need not demonstrate that 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.”). The Second Circuit has emphasized that “[w]hether two positions are ‘substantially equal’ for [EPA] purposes is a question for the jury.”

Applying the law, the court explained:

Here, Plaintiff alleges that she was paid significantly less than her male colleagues. As noted supra, Plaintiff alleges that she was paid $11,000 less than Wolfshorndl, even though she initially supervised Wolfshorndl, and even though he is not licensed or LEED-certified and has less education and experience than Plaintiff. Am. Compl. ¶¶ 46–49, 51. Plaintiff also alleges that at least three other male assistant directors in DDCM, with less experience and inferior qualifications, are “paid even more than Wolfshorndl,” and thus more than $11,000 more than Plaintiff. Id. ¶52. Finally, Plaintiff alleges that Goldstein and Fasolino are paid up to $33,000 more than Plaintiff despite having lesser qualifications and comparable job responsibilities. Id. ¶¶ 53–54.

Plaintiff also sufficiently alleges that she performs substantially comparable, if not more complex, work than her higher-paid male colleagues. With respect to the other male assistant directors in DDCM, Plaintiff claims that her work requires a “greater level of expertise and skill” than the work done by those project management assistant directors, “as well as more knowledge and a broader perspective and understanding of the design and construction industry, regulatory issues, and [the inner workings of] CUNY.” Id. ¶ 41; see Chiaramonte v. Animal Med. Ctr., No. 13-CV-5117, 2014 WL 3611098, at *5 (S.D.N.Y. July 22, 2014) (denying a motion to dismiss an EPA claim where plaintiff alleged that she and a comparator “both performed similar work,” but that “in addition to those duties, [plaintiff] shouldered responsibilities that [the comparator] did not match”). Moreover, Plaintiff alleges that although she has the “education, skills, and experience to do the project management work,” not all of the higher-paid project management assistant directors have the qualifications to do the CUNY-wide work that she does. Am. Compl. ¶ 41; see Scelfo v. Aurora Concept Inc., No. 02-CV-7835, 2006 WL 336038, at *10–11 (S.D.N.Y. Feb. 10, 2006) (denying defendant’s motion for summary judgment on EPA claim because the plaintiff alleged that a comparator with less education and experience was paid more than she was). Finally, Plaintiff claims that her CUNY-wide responsibilities are comparable to Fasolino’s, even though he outranks her (he is a director).4 Id. ¶ 54; see Chepak v. Metro. Hosp., 555 F. App’x 74, 76 (2d Cir. 2014) (it is the “job content and not [the] job title or description” that determines “whether there was a violation of the anti-discrimination laws.”).

Based on this, the court concluded that “[p]laintiff’s allegations that she was paid less than her male colleagues for doing equal, if not more complex, work are sufficient to state a plausible EPA claim.”

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