Opinion
00 Civ. 6712 (SAS)
January 22, 2003
For Plaintiff: Richard Turyn, Esq., Ballon Stoll Bader Nadler, P.C., New York, New York
For Defendant: Stephen Kitzinger, Assistant Corporation Counsel New York, New York
MEMORANDUM OPINION AND ORDER
On December 10, 2002, the Second Circuit issued a Mandate directing this Court to reconsider its dismissal of plaintiff's Title VII discrimination claim in light of National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002), and Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). Upon reconsideration and for the following reasons, plaintiff's Title VII claim is reinstated as are his unequal pay claims.
On December 11, 1998, plaintiff issued a Memorandum entitled "Final Request for Adjustment of My Status" to the Director of the Staff Analyst Union for the New York City Administration for Children's Services ("ACS"). In that Memorandum, plaintiff requested the promotion that "rightly was promised to [him] for over two and a half years now." Plaintiff stated that it was his belief that discrimination was the sole reason why he was still denied the promotion promised to him when he transferred to ACS on June 10, 1996.
Copies were sent to the Commissioner of ACS and the Director of ACS's Audit Review and Analysis Unit.
In a Memorandum Opinion and Order, I dismissed plaintiff's Title VII failure to promote claim as time-barred given that plaintiff's Charge of Discrimination was filed on May 5, 1999, almost three years after plaintiff's transfer. Simpri v. New York City Agency for Children's Services, No. 00 Civ. 6712, 2001 VIL 1661910, at * 5 (S.D.N.Y. Dec. 28, 2001). I characterized the December 1998 Memorandum as "not another promotion request but rather a formal grievance of defendant's inaction with respect to the promotion promised in 1996." Id. at *3. Thus, although the 1998 Memorandum was within the 300-day filing period, I found the continuing violations doctrine inapplicable and plaintiff's 1996 failure to promote claim to be time-barred. See id. at *4
In Morgan, the Supreme Court rejected the application of the continuing violations doctrine to a series of discrete
discriminatory acts. In so doing, the Court stated that, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.
* * *
Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable "unlawful employment practice."Morgan, 122 S.Ct. at 2072-73.
In light of Morgan, the 1998 Memorandum can be viewed as a second request for a promotion first promised in 1996. The ACS's subsequent failure to honor that promotion is therefore a discrete discriminatory act with its own limitations period. See id. at 2072 ("Each discrete discriminatory act starts a new clock for filing charges alleging that act."). The ACS's failure to adjust plaintiff's status necessarily occurred after December 11, 1998, the date of the Memorandum. Given that plaintiff filed an EEOC Charge on May 5, 1999, any post-Memorandum date is within the 300-day limitations period. Plaintiff's failure to promote claim under Title VII is therefore timely and must be reinstated. Moreover, in light of Swierkiewicz, plaintiff's unequal pay claims, brought under both Title VII and the Equal Pay Act ("EPA"), must also be reinstated.
Unequal pay claims can arise under both the EPA and Title VII. See E.E.O.C. v. Cherry-Burrell Corp., 35 F.3d 356, 359 (8th Cir. 1994). "The purpose behind the enactment of the EPA was to legislate out of existence a long-held, but outmoded societal view that a man should be paid more than a woman for the same work. The EPA required employers to pay equal wages for equal work." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). "To prove a violation of the EPA, a plaintiff must first establish a prima facie case of discrimination by showing: "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 in) the jobs are performed under similar working conditions.'" Id. at 135 (quoting Tomka v. Seller Corp., 66 F.3d 1295, 1310 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).
The EPA reads, in pertinent part, as follows:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . .29 U.S.C. § 206 (d)(1).
While this was the historical rationale underlying the enactment of the EPA, the statutory language is not gender specific and therefore does not foreclose the case in which a woman is paid more than a man.
"A claim of unequal pay for equal work under Title VII is generally analyzed under the same standards used in an EPA claim." Tomka, 66 F.3d at 1312. Accordingly, to establish a prima facie case of unequal pay under Title VII, a plaintiff must show that: i) he is a member of a protected class; and ii) he was paid less than non-members of his class for work requiring substantially the same responsibility. See Belfi, 191 F.3d at 139. A Title VII plaintiff must also produce some evidence of discriminatory animus in order to establish a prima facie case of intentional salary discrimination. See id.
In Swierkiewicz, the Supreme Court held that "an employment discrimination plaintiff need not plead a prima fade case of discrimination. . . ." 534 U.S. at 515. Instead, the complaint must comply with the simplified pleading standard found in Federal Rule of Civil Procedure 8(a)(2) which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 512. "Such a statement must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Here, the requirements of Rule 8(a) are satisfied when plaintiff's EEOC Charge of Discrimination is read in conjunction with his Complaint and his affidavit in opposition to defendant's motion to dismiss.
Reading plaintiff's pro se Complaint liberally as required by Haines v. Kerner, 404 U.S. 519, 520 (1972), the allegations contained in plaintiff's opposing affidavit are hereby deemed incorporated into his form Complaint. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in reviewing district court's dismissal of claim).
In his EEOC Charge, plaintiff alleges as follows: "I believe I have been paid less and not given the job title of my predecessor, because of my sex, male, and my race and national origin, African American, in violation of the Title VII and the Equal Pay Act." See EEOC Charge ¶ 7. Plaintiff's form Complaint attaches a letter from the EEOC dated May 17, 2000, which states that "you alleged that you were discriminated against on the bases of your sex (Male), race and national origin (African American) in violation of Title VII of the Civil Rights Act off 1964, as amended and the Equal Pay Act in that you we[r]e paid less and not given the job title of your predecessor, a White female." 5/17/00 Letter from Anne Schrage, EEOC Senior Investigator. Finally, in his opposing affidavit, plaintiff alleges that ACS hired Elaine McPartland and Kay Albanese, who he claims were less qualified but paid more as Associate Staff Analysts than he was paid as a Staff Analyst. See Affidavit of Aristotle Simpri in Opposition to Defendant's Motion to Dismiss ("Simpri Aff.") at ¶¶ 6, 8, 14. According to plaintiff, both McPartland and Albanese were paid more for doing substantially less work. See id. ¶ 8.
The above allegations, even when read in combination, do not plead a prima facie case of unequal pay under either the EPA or Title VII. The allegations are deficient to establish a prima facie case under the EPA in that they do not establish that Simpri and McPartland/Albanese performed equal jobs requiring equal skill, effort and responsibility under similar working conditions. Indeed, the fact that McPartland and Albanese were brought in as Associate Staff Analysts would tend to refute any similarity in job titles. Nor do plaintiff's allegations establish an unequal pay claim under Title VII given that there is no evidence that discriminatory animus motivated the pay differential. Before Swierkiewicz, plaintiff's allegations of unequal pay could not have withstood a motion to dismiss, even when read in combination. Nonetheless, plaintiff has put defendant on fair notice of his unequal pay claims. Because no more is required under Swierkiewicz, plaintiff's allegations are sufficient. Accordingly, the next step is to determine whether plaintiff's unequal pay claims are time barred.
This is why these claims were previously dismissed sub silentio.
As stated by the Second Circuit,
a claim of discriminatory pay is fundamentally unlike other claims of ongoing discriminatory treatment because it involves a series of discrete, individual wrongs rather than a single and indivisible course of wrongful action. As the Supreme Court explained in Bazemore v. Friday [ 478 U.S. 385, 395-96 (1986)], characterizing the harm imposed by a racially discriminatory pay scale, "Each week's paycheck that delivers less to a [disadvantaged class member] than to a similarly situated [favored class member] is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date" of limitation.Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997) (quoting Bazemore v. Friday, 478 U.S. 385, 395-96 (1986)). See also Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 371 (S.D.N.Y. 1999) ("recurring pay discrimination does not constitute a continuing violation, as each receipt of a paycheck is the basis for a separate cause of action for which suit must be brought within the limitations period"); Quarless v. Bronx-Lebanon Hosp. Ctr., 228 F. Supp.2d 377, 383 n. 2 (S.D.N.Y. 2002 (holding that, in light of Morgan, Pollis applies to Title VII claims as well as claims under the EPA)
Here, plaintiff alleges that he was paid less than his predecessor, Ingrid Johnson, as well as two co-workers, McPartland and Albanese. With regard to Johnson, plaintiff's unequal pay claims are time-barred. See Quarless, 228 F. Supp.2d at 382 ("Because each paycheck that the Plaintiff received was an (alleged) immediate and individual wrong which gave rise to a separate disparate pay claim, the Plaintiff cannot use the continuing violation doctrine to render timely any disparate pay violations which occurred outside the 300 day statute of limitations."). However, plaintiff's unequal pay claim under the EPA is timely, at least with respect to Albanese. See Simpri Aff. ¶ 14 (computing salary differential between plaintiff and Albanese for the period June 10, 1996 through December 29, 2000) Whether plaintiff has a Title VII unequal pay claim with respect to Albanese and whether he has unequal pay claims with respect to McPartland are issues that will be resolved in discovery. See Swierkiewicz, 122 S.Ct. at 998 ("This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.").
In all probability, plaintiff does not even have an unequal pay claim against Johnson under the EPA because the EPA's use of the present tense seems to require a temporal identity in comparators. See 29 U.S.C. § 206 (d)(1) ("No employer . . . shall discriminate . . . by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex. . . .) (emphasis added). Because Johnson and plaintiff were not paid at the same times, the EPA appears to be inapplicable.
Plaintiff does not analyze the salary differential between himself and McPartland, nor does he state the time period in which McPartland worked at ACS. Thus, it remains to be seen whether his unequal pay claim with respect to McPartland is timely. Given that the case will proceed on the unequal pay claim as to Albanese, the McPartland issue is best resolved through discovery and summary judgment.
For the reasons stated above, plaintiff's failure to promote claim under Title VII is reinstated as are his unequal pay claims with respect to McPartland and Albanese, brought under Title VII and the EPA. A conference is scheduled for February 5, 2003 at 3:30 p.m. to discuss, inter alia, whether plaintiff will be permitted to amend his Complaint to include a hostile work environment claim. The Clerk of the Court is directed to reinstate this case to the active docket forthwith.
SO ORDERED