13

‐ 2705

‐ cv

EEOC v. Port Authority of N.Y. and N.J.

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

3

August Term, 2013 4

5

(Argued: May 27, 2014 Decided: September 29, 2014) 6

7

No. 13

‐ 2705

‐ cv 8

_____________________________________ 9

10

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION

, 11

12

Plaintiff

‐ Appellant

, 13

14

‐ v. ‐ 15

16

P ORT A UTHORITY OF N EW Y ORK AND N EW J ERSEY

, 17

18

Defendant

‐ Appellee

. 19

_____________________________________ 20

21

Before: L IVINGSTON and D RONEY

, Circuit Judges ; C HEN

, District Judge

. * 22

23

The Equal Employment Opportunity Commission (“EEOC”) appeals from a 24

judgment on the pleadings of the United States District Court for the Southern 25

District of New York (Buchwald, J. ), dismissing the EEOC’s complaint against the 26

Port Authority of New York and New Jersey (“Port Authority”), brought pursuant 27

to the Equal Pay Act of 1963, 29 U.S.C. § 206(d). The district court concluded that 28

the EEOC failed to allege sufficient facts to state a plausible claim that female and 29

male attorneys at the Port Authority performed “equal work” despite receiving 30

* The Honorable Pamela K. Chen, United States District Judge for the Eastern District

of New York, sitting by designation.unequal pay. Because the EEOC did not allege any facts supporting a comparison 1

between the attorneys’ actual job duties, thereby precluding a reasonable inference 2

that the attorneys performed “equal work,” we A FFIRM

. 3

4

J ULIE L. G ANTZ (P. David Lopez, Lorraine C. Davis, 5

and Daniel T. Vail, on the brief ), Equal Employment 6

Opportunity Commission, Washington, D.C., for 7

Plaintiff

‐ Appellant

. 8

9

R OSEMARY A LITO (George Peter Barbatsuly, on the 10

brief ), K&L Gates LLP, Newark, New Jersey, for 11

Defendant

‐ Appellee

. 12

13

D EBRA A NN L IVINGSTON

, Circuit Judge : 14

Following a three

‐ year investigation, the Equal Employment Opportunity 15

Commission (“EEOC”) filed suit against the Port Authority of New York and New 16

Jersey (“Port Authority”), asserting that the Port Authority paid its female 17

nonsupervisory attorneys at a lesser rate than their male counterparts for “equal 18

work,” in violation of the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d). 1 To 19

support its claim that the attorneys performed “equal work,” the EEOC pled broad 20

facts concerning the attorneys’ jobs (such as that the attorneys all have “the same 21

professional degree,” work “under time pressures and deadlines,” and utilize both 22

1 The EEOC also asserted claims under the Age Discrimination in Employment Act

of 1967, 29 U.S.C. § 623, but the parties stipulated to the dismissal of those claims with

prejudice and we do not consider them in this appeal.

2“analytical” and “legal” skills) that are generalizable to virtually all practicing 1

attorneys. The EEOC did not, however, plead any facts particular to the attorneys’ 2

actual job duties. Instead, the EEOC proceeded under a theory that, at the Port 3

Authority, “an attorney is an attorney is an attorney”

– that is, that the dozens of 4

nonsupervisory attorneys working at the Port Authority during the relevant period 5

(in practice areas ranging from Contracts to Maritime and Aviation, and from Labor 6

Relations to Workers’ Compensation) were all doing equal work

– and that, as a 7

result, the EEOC was not required to detail similarities between the attorneys’ job 8

duties (or other factual matter as to the content of the attorneys’ jobs) to state a 9

plausible EPA claim. 10

Holding to the contrary, the district court granted the Port Authority’s motion 11

for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). See 12

EEOC v. Port Auth. of N.Y. & N.J.

, No. 10 Civ. 7462 (NRB), 2012 WL 1758128, at *6 13

(S.D.N.Y. May 17, 2012). We conclude that the EEOC’s failure to allege any facts 14

concerning the attorneys’ actual job duties deprives the Court of any basis from 15

which to draw a reasonable inference that the attorneys performed “equal work,” 16

3the touchstone of an EPA claim. Accordingly, the complaint failed to state a 1

plausible claim for relief. We therefore affirm the judgment of the district court. 2

B ACKGROUND 2 3

In 2007, spurred by a charge of discrimination filed by a female attorney in the 4

Port Authority’s law department, the EEOC began an investigation into the Port 5

Authority’s pay practices. The Port Authority states that it cooperated with the 6

investigation, a characterization the EEOC does not contest. In 2010, the EEOC 7

issued a determination letter announcing its conclusion that the Port Authority had 8

violated the EPA by paying its female attorneys at a lesser rate than its male 9

attorneys. Specifically, the EEOC asserted that a comparison of the salaries of 10

“similarly situated attorneys” revealed that “males were earning more than their 11

female comparators, and in most instances by a wide margin.” Moreover, according 12

to the EEOC, “[a] review of the evidence indicate[d] that the pay disparity [was] not 13

explained by

. . . factors other than sex.” The EEOC did not identify additional 14

claimants, any comparators, or facts supporting its conclusion that the attorneys at 15

2 The following facts are taken from the EEOC’s complaint and incorporated

interrogatory responses, “which we assume to be true and construe in the light most

favorable to the plaintiff.” See Cruz v. FXDirectDealer, LLC

, 720 F.3d 115, 118 (2d Cir. 2013).

Where necessary for context, this section also refers to the district court’s order dismissing

the EEOC’s complaint, as well as transcripts of the proceedings before the district court.

4issue were “similarly situated.” The determination letter offered conciliation 1

discussions, which the Port Authority declined. The EEOC then initiated this suit. 2

The EEOC’s complaint alleges, essentially in sum, that the Port Authority 3

violated the EPA because: 4

The Port Authority has paid and continues to pay wages to its non

‐ 5

supervisory female attorneys at rates less than the rates paid to male 6

employees in the same establishments for substantially equal work for 7

jobs the performance of which requires equal skill, effort, and 8

responsibility, and which are performed under similar working 9

conditions. 10

J.A. 11

‐ 12. The complaint charges that while nonsupervisory attorneys share the 11

same job code, female attorneys are paid salaries “less than male attorneys having 12

the same job code,” and that “[t]he disparity in pay cannot be attributed to factors 13

other than sex.” J.A. 12. The Port Authority answered, and at a subsequent 14

conference, the district court suggested its skepticism that the EEOC had adequately 15

pled a claim, despite its access to evidence gathered during the three

‐ year 16

investigation. Accordingly, the district court ordered the Port Authority to serve 17

and the EEOC to respond to interrogatories to elucidate “what [the EEOC’s] position 18

is.” 19

5In its responses to the Port Authority’s interrogatories, the EEOC identified 1

fourteen female nonsupervisory attorneys as claimants as well as a host of alleged 2

comparators for each claimant, with the claimants and comparators presented in a 3

table comparing their dates of bar admission, dates of service with the Port 4

Authority, salaries, and divisions. The EEOC asserted that the claimants’ and 5

comparators’ jobs were substantially similar based on broad allegations that, inter 6

alia

, the attorneys served the same client, the Port Authority; there were no job 7

descriptions differentiating between jobs; and the attorneys’ jobs all demanded a 8

professional demeanor, compliance with rules of professional conduct, and 9

familiarity with legal documents. The EEOC also provided allegations specific to 10

the Port Authority to support its contention that the Port Authority understood the 11

claimants’ and comparators’ jobs to be similar, including that the attorneys shared 12

the same job code; the Port Authority’s attorney “maturity curve”

– or chart for 13

determining salaries

– did not differentiate between practice areas or divisions when 14

setting upper and lower limits for salaries, but instead relied on years of legal 15

experience; the Port Authority used the same criteria

– such as “decision making” 16

and “interpersonal skills”

– to evaluate the performance of all its nonsupervisory 17

6attorneys; and the Port Authority did not invariably separate work by practice area, 1

but instead assigned work across divisions, and sometimes moved attorneys 2

between divisions or into consolidated divisions. 3

Finally, the EEOC asserted that the claimants’ and comparators’ jobs 4

demanded substantially equal skill, effort, and responsibility, and were performed 5

under similar working conditions

– the statutory criteria underlying the equal work 6

inquiry. As to skill, the EEOC alleged that the attorneys’ jobs “do not require 7

different experience, training, education, or ability,” and instead require: 8

the same professional degree and admission to the bar[;]

. . . 9

problem

‐ solving and analytical skills to identify, research, analyze, 10

evaluate, and resolve legal issues clearly and persuasively[;]

. . . the use 11

of professional judgment and legal skills to draft, review, and 12

implement legal documents[;]

. . . the ability to understand and comply 13

with department, agency, and legal instructions and procedures[;]

. . . 14

the ability to consult with and provide legal advice to the same client, 15

the Port Authority[;]

. . . the ability to interact and consult with outside 16

legal staff or other Port Authority attorneys on client matters[;]

. . . the 17

same degree of diligence and persistence[; and]

. . . the ability to 18

manage time, meet deadlines, and prioritize assignments. 19

20

J.A. 60. As to effort, the EEOC alleged, without elaboration, that the attorneys’ jobs: 21

require the same physical or mental exertion[;]

. . . are performed under 22

time pressures and deadlines[; and]

. . . require the same 23

problem

‐ solving and analytical efforts, the same efforts to draft, review, 24

and implement legal documents, the same efforts to consult with and 25

7provide legal advice to the Port Authority, and the same efforts to 1

interact and consult with outside legal staff or other Port Authority 2

attorneys on client matters. 3

4

J.A. 63

‐ 64. Concerning responsibility, the EEOC alleged that: 5

[C]laimants[’] and comparators’ jobs require the same degree of 6

accountability and supervision[;]

. . . are all non

‐ supervisory and have 7

substantially the same reporting structure and the same level of 8

supervision[;]

. . . are of equal significance to the [Port Authority; and] 9

. . . require that the claimants and comparators be able to respond to 10

and act on behalf of the General Counsel. All of the jobs are 11

responsible for decisions that affect the Port Authority’s rights and 12

liabilities. The jobs require independent judgment and discretion 13

subject to the same level of oversight and supervision[;]

. . . require that 14

supervisory and management staff remains informed of the status of 15

matters[; and]

. . . require the same responsibility to provide advice and 16

respond to and represent the interests of the same client, the Port 17

Authority. 18

19

J.A. 64

‐ 65. Last, as to working conditions, the EEOC alleged that: 20

[A]ll of the claimants and comparators worked out of the same office, 21

in a legal setting customarily used by attorneys, and none of the 22

claimants or comparators were regularly exposed to different physical 23

surroundings, including different elements such as toxic chemicals or 24

fumes, or physical hazards in performing their job duties. 25

26

J.A. 66. In sum

– stating nothing about the actual content of the work done by the 27

dozens of attorneys either within or across practice areas at the Port Authority

– the 28

EEOC’s responses alleged, in conclusory fashion, that “all of the non

‐ supervisory 29

8attorney jobs in [the Port Authority’s] law department are substantially equivalent 1

and require the same skill, effort, and responsibility.” J.A. 69. 2

Following the EEOC’s filing of its responses, the Port Authority requested 3

leave to move for judgment on the pleadings pursuant to Rule 12(c). At a conference 4

on that request, the district court sought to confirm the basis of the EEOC’s claim. 5

First, the court expressed its confusion concerning the EEOC’s selection of 6

comparators, which it characterized as, “frankly, random.” By way of example, the 7

court noted that the EEOC had compared a female claimant who was admitted to 8

the bar in 1978, joined the Port Authority in 1985, worked for the “Real Estate, 9

Leases, and Environmental Law” department, and earned $145,262, with a male 10

comparator who was admitted to the bar in 1962, joined the Port Authority in 1994, 11

worked for the “Commercial Litigation” department, and made $147,498

– a 12

difference of sixteen years legal experience and approximately $2,000 salary. The 13

EEOC defended its selection on the ground that each claimant and her comparators 14

had no “more than ten years[’]” difference in combined years of bar admission and 15

service with the Port Authority. In the court’s example, then, the male attorney’s 16

additional years of legal experience were offset by the female attorney’s additional 17

9years at the Port Authority. Finding that the comparisons nonetheless elided 1

“extraordinary difference[s]” between the attorneys, the court inquired whether the 2

EEOC’s theory for its claim was that the attorneys’ jobs were equal “regardless of 3

the[ir] work,” that is, whether the EEOC’s theory was that “an attorney is an 4

attorney is an attorney.” The EEOC agreed that it was, save for the caveat that the 5

theory

– for purposes of this claim

– was limited to the Port Authority. In light of 6

the EEOC’s “affirmative position that [Port Authority attorneys] are all the same,” 7

the court granted the Port Authority leave to file its motion, which the Port 8

Authority duly filed on September 28, 2011. 9

On the basis of the pleadings and the EEOC’s interrogatory responses, which 10

were treated as a “functional amendment” to the EEOC’s complaint, the district 11

court thereafter granted judgment in favor of the Port Authority. Port Auth. of N.Y. 12

& N.J.

, 2012 WL 1758128, at *1 & n.2. In so ruling, the court first held that the 13

EEOC’s complaint, “[s]tanding alone,” was “clearly insufficiently pleaded” as it did 14

“nothing more than track the language of the statue.” Id. at *4. The court next held 15

that the EEOC’s interrogatory responses successfully pleaded that the claimants’ and 16

comparators’ jobs entailed equal levels of responsibility, given the allegation that the 17

10attorneys were all “nonsupervisory” and worked under “the same reporting 1

structure and

. . . level of supervision.” Id. However, the court also determined that 2

the responses failed adequately to allege that the attorneys’ jobs required equal skill 3

and effort, given that the EEOC’s reliance on “broad generalities about attorneys in 4

general”

– rather than “say[ing] anything about [the] Port Authority’s attorneys in 5

particular”

– described the work of “virtually any practicing lawyer” and thus did 6

not amount to “a true comparison of the content of the jobs at issue.” Id. 7

Finally, the district court deemed the EEOC’s “an attorney is an attorney is an 8

attorney” theory insufficient to support its claim. The court acknowledged that the 9

EEOC had alleged four facts suggesting that the Port Authority treated the 10

attorneys’ positions similarly: the claimants and comparators had the same job code; 11

were paid within the bounds of an attorney “maturity curve” based on years of legal 12

experience; were evaluated according to the same performance criteria; and were not 13

inflexibly limited to distinct legal divisions. Id. at *5. But the court concluded that 14

these allegations did not touch upon the attorneys’ actual job duties and thus could 15

not give rise to an inference that the attorneys’ jobs required “substantially equal” 16

work. To reach this conclusion, the court first held that the shared job codes were 17

11not entitled “any weight” because titles or codes “are not a reflection of job content.” 1

Id. Similarly, the court deemed the use of identical performance criteria to be 2

insignificant given that the “blandly generic” criteria the Port Authority employed 3

could be “used to evaluate different employees on different scales.” Id. Next, the 4

court found that the movement of attorneys between divisions was inconsequential, 5

as transfers would “only be asked of those who have the ability to satisfy the 6

requirements” and that the consolidation of divisions was beside the point as it did 7

not “speak to the actual content of the jobs.” Id. Last, the court found that the 8

“maturity curve’s” reliance on years of legal experience to set permissible salary 9

ranges compelled the conclusion that factors “other” than years of legal experience 10

informed the selection of salaries within the predetermined ranges. Id. at *6. As 11

such, the court declared that the EEOC’s “bald assertion” that the “other” factor 12

must be sex ignored not only potential differences in the attorneys’ job duties but 13

also the “multitude of legitimate factors” that may have informed the attorneys’ 14

salaries. Id. 15

The district court concluded that it “strains credulity to argue that [the] Port 16

Authority, which does not set wages based on a lockstep scale, does not factor into 17

12its pay decisions the kind and quality of work its attorneys perform.” Id. Because 1

the EEOC’s “allegations as a whole simply do not rise to the requisite level of facial 2

plausibility,” the court granted judgment in favor of the Port Authority and 3

dismissed the EEOC’s complaint. Id. This appeal followed. 4

D ISCUSSION 5

A. Legal Standard 6

We review de novo a district court’s dismissal of a complaint pursuant to 7

Federal Rule of Civil Procedure 12(c), employing “the same

. . . standard applicable 8

to dismissals pursuant to Fed. R. Civ. P. 12(b)(6).” Morris v. Schroder Capital Mgmt. 9

Int’l

, 445 F.3d 525, 529 (2d Cir. 2006) (internal quotation marks omitted). Thus, we 10

accept all factual allegations in the complaint as true and draw all reasonable 11

inferences in favor of the plaintiff. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.

, 493 12

F.3d 87, 98 (2d Cir. 2007). 13

The pleading standard we employ in reviewing discrimination complaints is 14

somewhat less settled, however. In Swierkiewicz v. Sorema N.A.

, 534 U.S. 506 (2002), 15

the Supreme Court held that an employment discrimination complaint need not set 16

forth “specific facts establishing a prima facie case of discrimination” to survive a 17

13motion to dismiss and, instead, was subject only to the minimal standard required 1

by Federal Rule of Civil Procedure 8, that a complaint provide “‘a short and plain 2

statement of the claim showing that the pleader is entitled to relief,’” id. at 508 3

(quoting Fed. R. Civ. P. 8(a)(2)), such that it would “‘give the defendant fair notice 4

of what the plaintiff’s claim is and the grounds upon which it rests,’” id. at 512 5

(quoting Conley v. Gibson

, 355 U.S. 41, 47 (1957)). At the time, application of Rule 8 6

was governed by the standard set forth in Conley v. Gibson

, which instructs that a 7

complaint should not be dismissed “unless it appears beyond doubt that the plaintiff 8

can prove no set of facts in support of his claim which would entitle him to relief.” 9

355 U.S. at 45

‐ 46. 10

That standard was abandoned by the Court’s later rulings in Twombly and 11

Iqbal

, which clarified the proper Rule 8 standard as being whether a complaint 12

alleged “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. 13

Corp. v. Twombly

, 550 U.S. 544, 570 (2007), such that a court could “draw the 14

reasonable inference that the defendant is liable for the misconduct alleged,” 15

Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009). Contrary to Conley ’s “no

‐ set

‐ of

‐ facts” 16

standard, which requires only that a complaint not preclude the viability of claims, 17

14Twombly and Iqbal require that a complaint support the viability of its claims by 1

pleading sufficient nonconclusory factual matter to set forth a claim that is plausible 2

on its face. See Twombly

, 550 U.S. at 555 (noting that a complaint offering “labels and 3

conclusions” or “a formulaic recitation of the elements of a cause of action will not 4

do”); Iqbal

, 556 U.S. at 678 (noting that a complaint must demonstrate “more than a 5

sheer possibility that a defendant has acted unlawfully”); see also EEOC v. Concentra 6

Health Servs., Inc.

, 496 F.3d 773, 777 (7th Cir. 2007) (comparing Conley with Twombly ). 7

In “retiring” Conley

, Twombly reaffirmed Swierkiewicz

. See Brown v. Daikin Am. Inc.

, 8

756 F.3d 219, 228 n.10 (2d Cir. 2014). However, it did so only insofar as Swierkiewicz 9

“did not change the law of pleading, but simply re

‐ emphasized that the use of a 10

heightened pleading standard for [discrimination] cases was contrary to the Federal 11

Rules’ structure of liberal pleading requirements.” Twombly

, 550 U.S. at 570 (internal 12

quotation marks and ellipsis omitted). 13

Since Twombly and Iqbal

, Swierkiewicz ’s continued vitality has been an open 14

question in this Circuit. See, e.g.

, Daikin Am. Inc.

, 756 F.3d at 228 & n.10. Specifically, 15

uncertainty lingered as to whether Twombly and Iqbal overruled Swierkiewicz entirely, 16

or whether Swierkiewicz survives only to the extent that it bars the application of a 17

15pleading standard to discrimination claims that is heightened beyond Twombly ’s and 1

Iqbal ’s demand for facial plausibility. We reject the first proposition. Twombly ’s 2

endorsement of Swierkiewicz mandates, at a minimum, that Swierkiewicz ’s rejection 3

of a heightened pleading standard in discrimination cases remains valid. See 4

Rodriguez

‐ Reyes v. Molina

‐ Rodriguez

, 711 F.3d 49, 54 & n.3 (1st Cir. 2013) (holding that 5

Swierkiewicz ’s “discussion of the disconnect between the prima facie case and the 6

rules of pleading” remains “good law” after Twombly and Iqbal ). 7

Instead, along with several of our sister circuits, we recognize that Swierkiewicz 8

has continuing viability, as modified by Twombly and Iqbal

. Swierkiewicz held only 9

that discrimination complaints are subject to the requirements of Rule 8, a rule now 10

guided by the Court’s more recent holdings on the pleading standard. See 11

Rodriguez

‐ Reyes

, 711 F.3d at 54 n.3 (stating that Swierkiewicz ’s reliance on Conley “to 12

describe the pleading standard

. . . is no longer viable”); Fowler v. UPMC Shadyside

, 13

578 F.3d 203, 211 (3d Cir. 2009) (noting that Swierkiewicz was “repudiated by both 14

Twombly and Iqbal

. . . at least insofar as [ Swierkiewicz ] concerns pleading 15

requirements and relies on Conley ”). As such, we conclude that, while a 16

discrimination complaint need not allege facts establishing each element of a prima 17

16facie case of discrimination to survive a motion to dismiss, see Swierkiewicz

, 534 U.S. 1

at 510 (noting that the prima facie case requirement is an evidentiary standard), it 2

must at a minimum assert nonconclusory factual matter sufficient to “‘nudge[] [its] 3

claims’

. . . ‘across the line from conceivable to plausible’” to proceed, Iqbal

, 556 U.S. 4

at 680 (quoting Twombly

, 550 U.S. at 570). With the proper standard set out, we turn 5

to the adequacy of the EEOC’s complaint and interrogatory responses. 6

B. The EPA Claim 7

Congress passed the EPA in 1963 “to legislate out of existence a long

‐ held, but 8

outmoded societal view that a man should be paid more than a woman for the same 9

work.” Belfi v. Prendergast

, 191 F.3d 129, 135 (2d Cir. 1999). From the first, the EPA 10

concerned equal pay for

– emphatically

– equal work. To that end, Congress rejected 11

statutory language encompassing “comparable work” to instead mandate equal pay 12

for “equal work on jobs the performance of which requires equal skill, effort, and 13

responsibility, and which are performed under similar working conditions.” 29 14

U.S.C. § 206(d)(1); see Brennan v. City Stores, Inc.

, 479 F.2d 235, 238 (5th Cir. 1973) 15

(quoting 109 Cong. Rec. 9197

‐ 98 (1963)). Thus, to prove a violation of the EPA, a 16

plaintiff must demonstrate that “[(1)] the employer pays different wages to 17

17employees of the opposite sex; [(2)] the employees perform equal work on jobs 1

requiring equal skill, effort, and responsibility; and [(3)] the jobs are performed 2

under similar working conditions.” Belfi

, 191 F.3d at 135 (internal quotation marks 3

omitted). 4

While the equal work inquiry does not demand evidence that a plaintiff’s job 5

is “identical” to a higher

‐ paid position, the standard is nonetheless demanding, 6

requiring evidence that the jobs compared are “substantially equal.” See 7

Lavin

‐ McEleney v. Marist Coll.

, 239 F.3d 476, 480 (2d Cir. 2001). To satisfy this 8

standard, a plaintiff must establish that the jobs compared entail common duties or 9

content, and do not simply overlap in titles or classifications. See, e.g.

, Tomka v. Seiler 10

Corp.

, 66 F.3d 1295, 1310 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., 11

Inc. v. Ellerth

, 524 U.S. 742 (1998). This focus on job content has been a constant in 12

the context of the EPA. For example, the EEOC’s own regulations provide that 13

“equal work” under the EPA is established not by reference to “job classifications 14

or titles but

. . . rather [by] actual job requirements and performance.” 29 C.F.R. 15

§ 1620.13(e). Similarly, the EEOC’s Compliance Manual states that “[j]ob content

. . . 16

determines the equality of jobs,” and “whether two jobs are substantially equal” 17

18turns on “whether the jobs have the same ‘common core’ of tasks.” EEOC 1

Compliance Manual § 10

‐ IV(E)(2) (2000). 2

The EEOC’s regulations also define the statutory criteria underlying the equal 3

work inquiry

– equal skill, effort, and responsibility

– by reference to actual job 4

content. For example, equal skill is defined as including “such factors as experience, 5

training, education, and ability,” as measured “in terms of the performance 6

requirements of the job ” at issue. 29 C.F.R. § 1620.15(a) (emphasis added). Equal 7

effort, by turn, looks to “the measurement of the physical or mental exertion needed 8

for the performance of a job .” Id. § 1620.16(a) (emphasis added). And equal 9

responsibility turns on “the degree of accountability required in the performance of the 10

job

, with emphasis on the importance of the job obligation .” Id. § 1620.17(a) (emphasis 11

added). In addition, the regulations illustrate these definitions by reference to 12

fact

‐ intensive examples that emphasize the centrality of job content to the equal 13

work inquiry, such as supermarket employees who are either required to move 14

heavy boxes or reorganize small merchandise, and sales clerks who are either 15

entrusted to determine whether to accept personal checks or who are not so 16

empowered. See id. §§ 1620.15

‐ 17. 17

19This Court has similarly focused on the congruity and equality of actual job 1

content between the plaintiff and comparator in weighing EPA claims. In Tomka v. 2

Seiler Corporation

, we stated that “job content and not job title or description” is the 3

central concern of an EPA claim. 66 F.3d at 1310. Given this precept, we affirmed 4

summary judgment in favor of a defendant on an EPA claim as to two of a plaintiff’s 5

better

‐ paid male co

‐ workers, because the plaintiff had “set forth no specific facts to 6

indicate that she performed substantially equal work” to those co

‐ workers. Id. 7

However, we vacated the judgment and remanded the claim insofar as it concerned 8

four other better

‐ paid male co

‐ workers, because the evidence demonstrated that the 9

plaintiff’s and her co

‐ workers’ job “duties” were “identical” or “overlap[ped].” Id. 10

at 1311. In Fisher v. Vassar College

, we first vacated and then, sitting en banc, 11

reversed a judgment in favor of the plaintiff pressing an EPA claim

– despite the fact 12

that she and her better

‐ paid male co

‐ worker were both professors at Vassar

– 13

because the plaintiff “never introduced evidence establishing that she and [and her 14

co

‐ worker] performed equivalent work.” 70 F.3d 1420, 1452 (2d Cir. 1995), reheard 15

en banc on other grounds

, 114 F.3d 1332 (2d Cir. 1997), abrogated on other grounds by 16

Reeves v. Sanderson Plumbing Prods., Inc.

, 530 U.S. 133 (2000). And tellingly, in 17

20Lavin

‐ McEleney v. Marist College

, we affirmed a judgment in favor of a 1

professor

‐ plaintiff bringing a similar claim

– despite the fact that the chosen 2

comparator and other statistical evidence compared salaries across departments

– 3

because the plaintiff offered “substantial evidence” that the comparisons “isolate[d] 4

comparable positions [to] accurately capture[] equality of skill, effort, and 5

responsibility.” 239 F.3d at 481 ; see also Byrne v. Telesector Res. Grp., Inc.

, 339 F. App’x 6

13, 16 (2d Cir. 2009) (summary order) (affirming summary judgment in favor of 7

defendant, despite fact that plaintiff and better

‐ paid male co

‐ workers had same job 8

title, because “[f]or purposes of an equal pay claim

. . . a finding of substantial 9

equality must be based on actual job content”). 10

To be sure, the bulk of these cases concerned whether the plaintiffs had 11

proven their EPA claims following summary judgment or trial, not whether the 12

plaintiffs had adequately pleaded their claims. Nonetheless, these cases as well as 13

the EEOC’s regulations and Compliance Manual stand for a common principle: a 14

successful EPA claim depends on the comparison of actual job content; broad 15

generalizations drawn from job titles, classifications, or divisions, and conclusory 16

assertions of sex discrimination, cannot suffice. At the pleading stage, then, a 17

21plausible EPA claim must include “sufficient factual matter, accepted as true” to 1

permit “the reasonable inference” that the relevant employees’ job content was 2

“substantially equal.” See Iqbal

, 556 U.S. at 678. Such factual allegations are 3

necessary to provide “fair notice [to the defendant] of the basis for [the plaintiff’s] 4

claims.” Swierkiewicz

, 534 U.S. at 514. Yet, despite a three

‐ year investigation 5

conducted with the Port Authority’s cooperation, the EEOC’s complaint and 6

incorporated interrogatory responses rely almost entirely on broad generalizations 7

drawn from job titles and divisions, and supplemented only by the unsupported 8

assertion that all Port Authority nonsupervisory attorneys had the same job, to 9

support its “substantially equal” work claim. As such, the EEOC’s complaint was 10

rightly dismissed. 11

First, the EEOC alleges in its complaint only that the Port Authority paid its 12

female nonsupervisory attorneys less than its male nonsupervisory attorneys “for 13

substantially equal work,” that these attorneys had “the same job code,” and that the 14

disparity in pay “cannot be attributed to factors other than sex.” The EEOC’s bald 15

recitation of the elements of an EPA claim and its assertion that the attorneys at issue 16

held “the same job code” are plainly insufficient to support a claim under the EPA. 17

22See Twombly

, 550 U.S. at 555 (deeming a “formulaic recitation of the elements of a 1

cause of action” insufficient to survive a motion to dismiss); Tomka

, 66 F.3d at 1310 2

(rejecting reliance on “job title or description” alone under the EPA). 3

Next, while the interrogatory responses provide some additional content to 4

the EEOC’s complaint, these responses too are insufficient to support a “reasonable 5

inference” of “substantially equal” work or to provide the Port Authority notice of 6

the grounds for the EEOC’s claim. See Iqbal

, 556 U.S. at 678; Swierkiewicz

, 534 U.S. 7

at 514. As outlined above, the EEOC alleged that the Port Authority required all of 8

its nonsupervisory attorneys to have similar “experience, training, education, or 9

ability,” bar admission, and the capacity to call upon “problem

‐ solving and 10

analytical skills” as well as “professional judgment.” However, such bland 11

abstractions

– untethered from allegations regarding Port Authority attorneys’ actual 12

job duties

– say nothing about whether the attorneys were required to perform 13

“substantially equal” work. Thus, the EEOC’s complaint provides no guidance as 14

to whether the attorneys handled complex commercial matters or minor slip

‐ and

‐ 15

falls, negotiated sophisticated lease and financing arrangements or responded to 16

employee complaints, conducted research for briefs or drafted multimillion

‐ dollar 17

23contracts. The EEOC asserts that such allegations are unnecessary because “all 1

lawyers perform the same or similar function(s)” and that “most legal jobs involve 2

the same ‘skill.’” Appellant’s Br. at 29. But accepting such a sweeping 3

generalization as adequate to state a claim under the EPA might permit lawsuits 4

against any law firm

– or, conceivably, any type of employer

– that does not employ 5

a lockstep pay model. Without more, these facts cannot be read to raise the EEOC’s 6

“substantially equal” work claim “above the speculative level.” See Twombly

, 550 7

U.S. at 555. 8

Nor does the EEOC’s table purporting to compare claimants and comparators 9

bolster its claim. As the district court noted, the comparisons drawn appear 10

superficially random, and rightly so: as the EEOC acknowledged, the table simply 11

juxtaposes claimants and comparators whose “combined” bar admission and service 12

dates are separated by no “more than ten years”

– a full decade of difference in 13

experience. 3 That the EEOC faulted the Port Authority for paying a male attorney 14

3 This ten

‐ year range is not the table’s only shortcoming. The EEOC nowhere

clarifies whether the attorneys cited in the table always worked in the same divisions since

joining the Port Authority or even whether they have always worked in legal positions. For

instance, the table indicates that several attorneys joined the Port Authority years before

their admission to the bar.

24only $2,000 more in salary than his female co

‐ worker with sixteen less years of legal 1

experience only serves to underscore the paucity of support offered by the EEOC’s 2

selection of comparators. Moreover, the table includes multiple male attorneys who 3

were paid more than their male co

‐ workers with similar qualifications, undermining 4

the EEOC’s contention that sex alone informed the alleged pay disparities at the Port 5

Authority. And while twelve of the EEOC’s 338 identified pairs of claimants shared 6

similar bar admission dates and years of service and worked in the same division 7

at the same time, this allegation fails to demonstrate that all Port Authority attorneys 8

perform “substantially equal” work. 9

Finally, the EEOC’s theory that “an attorney is an attorney is an attorney” 10

does nothing to assist its claim. As detailed above, such broad generalizations based 11

on mere job classifications are not cognizable under the EPA. And while it is 12

conceivable that the EEOC might have alleged facts supporting its contention that 13

the attorneys’ job duties were treated interchangeably, potentially giving rise to an 14

inference that they performed “substantially equal” work, no such specific 15

allegations can be found in the EEOC’s complaint. See Beck

‐ Wilson v. Principi

, 441 16

F.3d 353, 360

‐ 61 (6th Cir. 2006) (holding that evidence that jobs were “fungible” 17

25could “support a prima facie case under the EPA” where plaintiffs established that 1

defendant hospital “employed [predominantly female nurse practitioners] and 2

[predominantly male physician assistants] interchangeably” and that “the basic 3

duties of both [of those] jobs at the [hospital] c[ould] be performed by either [nurse 4

practitioners] or [physician assistants]”). Rather, the EEOC’s more particularized 5

allegations

– that Port Authority attorneys had the same job code; were evaluated 6

according to the same broad criteria; were paid according to the same “maturity 7

curve”; and were not limited to distinct legal divisions

– at most demonstrate that 8

Port Authority attorneys were subject to the same human resources policies. 9

Job codes, again, say nothing of actual job duties and are thus peripheral to 10

an EPA claim. The use of identical evaluative criteria such as “project 11

management,” “communication,” “flexibility and adaptability,” and “attendance,” 12

moreover, speaks only to the breadth of the standards used, not to whether the 13

attorneys subject to evaluation face varying workplace demands. And, as the 14

district court noted, the “maturity curve’s” reliance on years of legal experience to 15

set salary ranges supports only the inference that factors other than legal experience 16

– be it job content or any number of other criteria

– informed the determination of 17

26salaries within the curve. Finally, the transfer of attorneys between divisions 1

supports the inference that some attorneys had multidisciplinary skill sets, not that 2

all Port Authority attorneys were required to be so skilled. All told, the EEOC’s 3

allegations supporting its “an attorney is an attorney is an attorney” theory do 4

nothing to elucidate the skills or effort demanded of the Port Authority’s many 5

attorneys and, thus, do nothing to support the EEOC’s claim. 6

Simply put, the EEOC has not alleged a single nonconclusory fact supporting 7

its assertion that the claimants’ and comparators’ jobs required “substantially equal” 8

skill and effort. That the EEOC’s failure to include such factual allegations followed 9

a three

‐ year investigation into the Port Authority’s pay practices

– an investigation 10

conducted with the Port Authority’s cooperation

– is of some note. The 11

determination of whether a complaint states a plausible claim for relief is “a 12

context

‐ specific task that requires the reviewing court to draw on its judicial 13

experience and common sense.” Iqbal

, 556 U.S. at 679. Here, the EEOC had ready 14

access to Port Authority documents and employees, including to the claimants 15

asserting EPA violations, yet the EEOC failed

– in fact, repeatedly rejected the need 16

– to allege any factual basis for inferring that the attorneys at issue performed 17

27“substantially equal” work. See Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic 1

Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc.

, 712 F.3d 705, 723 (2d Cir. 2013) 2

(concluding that the plaintiffs’ “imprecise pleading is particularly inappropriate

. 3

. . where the plaintiffs necessarily ha[d] access, without discovery, to

. . . specific 4

information from which to fashion a suitable complaint”); Concentra Health Servs., 5

Inc.

, 496 F.3d at 780 (“The rules do not require unnecessary detail, but neither do 6

they promote vagueness or reward deliberate obfuscation.

. . . A complaint should 7

contain information that one can provide and that is clearly important

. . . .”). 8

Compare Chepak v. Metro. Hosp.

, 555 F. App’x 74, 76 (2d Cir. 2014) (summary order) 9

(vacating dismissal of EPA complaint where pro se plaintiff asserted she was paid 10

less to do the “same job” as her male predecessor). 11

Given the foregoing analysis, the EEOC’s pleadings cannot be said to contain 12

“enough fact[s] to raise a reasonable expectation that discovery will reveal evidence 13

of illegal[ity].” See Twombly

, 550 U.S. at 556 (emphasis added). Nor do the EEOC’s 14

allegations, read as a whole and with every reasonable inference drawn in the 15

EEOC’s favor, suggest “more than a sheer possibility” that the Port Authority 16

violated the EPA. Iqbal

, 556 U.S. at 678; see N.J. Carpenters Health Fund v. Royal Bank 17

28of Scot. Grp., PLC

, 709 F.3d 109, 121 (2d Cir. 2013) (“[C]ourts may draw a reasonable 1

inference of liability when the facts alleged are suggestive of, rather than merely 2

consistent with, a finding of misconduct.”). The EEOC has alleged, at most, that 3

some female nonsupervisory attorneys were paid less than some male 4

nonsupervisory attorneys at the Port Authority during the relevant period

– and 5

that, in other instances, the situation was reversed. The EEOC has not, however, 6

plausibly pleaded that these pay differentials existed despite the attorneys’ 7

performance of “substantially equal” work, the only workplace ill addressed by the 8

EPA. Without any nonconclusory allegations supporting such a claim, the district 9

court did not err in determining that the EEOC’s complaint was properly dismissed. 4 10

C ONCLUSION 11

For the foregoing reasons, we A FFIRM the judgment of the district court. 12

13

4 In so ruling, we do not address the question whether the EEOC must name all

claimants prior to suit or whether the EEOC must allege facts supporting that each

claimant performed “substantially equal” work to a higher

‐ paid co

‐ worker of the opposite

sex. We hold only that where, as here, a plaintiff fails to allege any nonconclusory facts

from which to infer that a single claimant performed “substantially equal” work to a higher

‐ paid co

‐ worker of the opposite sex, the plaintiff has failed to state a plausible claim for

relief under the EPA.

29