1 17

‐ 1308

‐ cv

Eng v. City of New York, New York City Police Department



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL

EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR

AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY

ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 14 th day of November, two thousand

seventeen.

PRESENT:

DENNIS JACOBS,

GERARD E. LYNCH,

Circuit Judges

,

PAUL A. CROTTY,*

District Judge

.

___________________ __________________

Mary Eng,

* Judge Paul A. Crotty, United States District Court for the Southern

District of New York, sitting by designation.2 Plaintiff

‐ Appellant,

v. 17

‐ 1308

City of New York, New York City Police Department,

Defendant

‐ Appellees

.

___________________ __________________

FOR APPELLANT: Brian M. Hussey, Law Office of Brian

M. Hussey, Wantagh, NY. Jonathan

A. Rappaport, Richard J. Katz LLP,

New York, NY, on the brief.

FOR APPELLEES: Diana Lawless (Richard Dearing and

Jane L. Gordon, on the brief), of

Counsel, for Zachary W. Carter,

Corporation Counsel of the City of

New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Batts, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED

.

Plaintiff

‐ appellant Mary Eng appeals the dismissal of her Equal Pay Act

(“EPA”), 29 U.S.C. § 206(d), New York State Human Rights Law (“NYSHRL”),

and New York City Human Rights Law (“NYCHRL”) claims, as well as the

district court’s denial of leave to amend her complaint for a second time. Eng

argues on appeal that the district court erred because: (1) she adequately pled

violations of the EPA, NYSHRL, and NYCHRL; (2) if her amended complaint was

deficient, she should have been granted leave to amend a second time; and (3) the3 district court should have declined to exercise supplemental jurisdiction over her

state law claims when it dismissed the federal claims. We assume the parties’

familiarity with the underlying facts, the procedural history, and the issues

presented for review.

1. “We review the grant of a motion to dismiss de novo, accepting as

true all factual claims in the complaint and drawing all reasonable inferences in

the plaintiff’s favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir.

2013). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation and quotation marks

omitted). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Id. This standard “asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. “A pleading that

offers labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do.” Id. (internal citation and quotation marks omitted).

EPA. “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 iii) the jobs are performed

under similar working conditions.” Belfi v. Prendergast, 191 F.3d 129, 135 (2d

Cir. 1999) (internal citation and quotation marks omitted); see also Corning Glass

Works v. Brennan, 417 U.S. 188, 195 (1974). “[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.”

Lavin

‐ McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir. 2001) (internal citation

and quotation marks omitted). “To satisfy this standard, a plaintiff must

establish that the jobs compared entail common duties or content, and do not

simply overlap in titles or classifications.” EEOC v. Port Auth. of N.Y. & N.J.,

768 F.3d 247, 255 (2d Cir. 2014). 1 “Under the EPA, proof of the employer ʹ s

1 The Plaintiff argues that the district court’s reliance on Port Authority was

misplaced because that case involved more comparators, and those plaintiffs4 discriminatory intent is not necessary for the plaintiff to prevail on her claim

. . . Thus, a prima facie showing gives rise to a presumption of discrimination.”

Belfi, 191 F.3d at 136.

The amended complaint fails to plausibly allege that Eng and her

comparators “perform[ed] equal work on jobs requiring equal skill, effort, and

responsibility; and the jobs are performed under similar working conditions.”

Port Auth. of N.Y. & N.J., 768 F.3d at 254

‐ 55 (internal citation and quotation marks

omitted). Eng’s only allegations are that she is the second longest tenured

criminalist amongst her and her comparators, that she is the Safety Officer, and

she is the only criminalist available 24/7, although she contradicts this allegation

by stating that the comparators are “rarely” called after work

‐ hours, which means

that they too would be available if called outside regular office hours. Joint

App’x at 63. Plaintiff at no point provides factual allegations about her or the

comparators’ job duties, skills, efforts, or responsibilities to demonstrate that their

respective jobs were substantially equal. Thus, she fails to state a prima facie

violation of the EPA.

The exhibits attached to Eng’s amended complaint do not help. A generic

“NYPD Careers” advertisement for appointment as a criminalist is an inadequate

basis for comparing equal job duties. Similarly, the list in Exhibit 2 for various

“scientific section manager[s]” is unhelpful because it is not apparent who

performs what job, or even whether these are jobs for criminalists. 2 Id. at 72

‐ 74.

Indeed, the incorporation of these exhibits in the amended complaint creates

additional ambiguity about whether the plaintiff and her coworkers actually held

similar responsibilities by alleging that her own job duties could be found in

Exhibit 2 (which describes four different positions), but that the duties of the

coworkers were described in “Exhibit 1 and/or Exhibit 2.” Id. at 63.

failed to adequately allege job duties; however, Eng likewise fails to specify job

duties, and the number of comparators does not affect the analysis.

2 Eng seeks judicial notice of the form complaint for employment discrimination

on the SDNY web site. This form in no way aids Eng’s argument; it requires a

pro se plaintiff, which Eng is not, to enter a narrative with factual allegations of

discrimination.5 State Law. Eng argues that: [1] her NYSHRL claims are not subject to the

federal plausibility standard, [2] she plausibly pled gender and age

discrimination, and [3] the district court did not conduct an independent analysis

of her state law claims.

[1] To make out a claim under the NYSHRL, a plaintiff must show that she

was: (1) “a member of a protected class;” (2) “qualified for her position;” (3)

“subjected to an adverse employment action;” and (4) “either terminated or

treated differently under circumstances giving rise to an inference of

discrimination.” Askin v. Dep’t of Educ. Of City of N.Y., 973 N.Y.S.2d 629, 630

(2013).

Eng’s NYSHRL claims, brought in federal court, are subject to the federal

pleading standard, and not the relaxed pleading standards of New York state

courts. “[F]ederal courts are to apply state substantive law and federal

procedural law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965); see also Cooper v.

N.Y. State Dep’t of Labor, 819 F.3d 678, 680 (2d Cir. 2016) (applying federal

pleading standards to retaliation claims under the NYSHRL).

[2] Plaintiff’s threadbare allegations do not give rise to a plausible inference

of discrimination on the basis of age or gender. Eng’s only allegations are that

she is a 58

‐ year old woman who is paid less than a 57

‐ year old man, a 54

‐ year old

man, and a 41

‐ year old woman. That alone cannot plausibly support an

inference that discriminatory animus is the reason for the disparities in pay she

alleges; we “cannot infer discrimination from thin air.” Norton v. Sam’s Club,

145 F.3d 114, 119 (2d Cir. 1998).

[3] The district court clearly conducted an independent analysis of her

NYSHRL claims: the claims are discussed separately from Plaintiff’s federal

claims under a separate heading.

City Law. “[C]ourts must analyze NYCHRL claims separately and

independently from any federal and state law claims, construing the NYCHRL’s6 provisions broadly in favor of discrimination plaintiffs, to the extent that such a

construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (internal citations and quotation marks

omitted). “Thus, even if the challenged conduct is not actionable under federal

and state law, federal courts must consider separately whether it is actionable

under the broader New York City standards.” Id.

Plaintiff’s only argument is that the district court failed to conduct a

meaningful analysis of the NYCHRL claim. 3 Plaintiff is mistaken. The district

court undertook an independent analysis of the NYCHRL allegations, noting the

separate legal standard for a NYCHRL claim, and then concluded that the

amended complaint did not remedy the problems besetting the NYSHRL and

NYCHRL claims in the original complaint. Merely listing the alleged pay

difference with two men of a similar age as Plaintiff and with a younger woman

does not plausibly demonstrate that plaintiff “has been treated less well than

other employees because of her gender” or age. Williams v. N.Y.C. Hous. Auth.,

872 N.Y.S.2d 27, 39 (2009).

2. Eng next argues that if her allegations were deficient, she should have

been granted leave to amend her complaint for a second time. “We review the

denial of leave to amend a complaint for abuse of discretion, unless the denial

was based on an interpretation of law, in which case the legal conclusion is

reviewed de novo.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.

2010) (internal citation omitted). “Futility is a determination, as a matter of law,

that proposed amendments would fail to cure prior deficiencies or to state a claim

under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Panther Partners

Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012). “ In assessing

whether the proposed complaint states a claim, we consider the proposed

amendments

. . . along with the remainder of the complaint, accept as true all

non

‐ conclusory factual allegations therein, and draw all reasonable inferences in

plaintiff’s favor to determine whether the allegations plausibly give rise to an

entitlement to relief.” Id. (internal citations and quotation marks omitted).

3 For the same reasons as her NYSHRL claim, Plaintiff’s NYCHRL claim is also

subject to the heightened federal pleading standard.7 The district court properly determined that allowing any further

amendments would be futile. It would be no help to assign complaint paragraph

numbers to the duties listed in the two exhibits, as Plaintiff has offered to do.

Even if the exhibits, which the district court already took into account in its

analysis, were incorporated directly into the body of the Complaint, Eng alleges

no new facts that would cure the pleading deficiencies. Therefore, the district

court did not abuse its discretion in denying Eng leave to amend for a second

time.

3. Eng also argues that even assuming the allegations are insufficient to

make out prima facie claims under the EPA, NYSHRL, and NYCHRL, and that

amendment would be futile, the district court should have declined to exercise

supplemental jurisdiction over the NYSHRL and NYCHRL claims. A district

court’s exercise of supplemental jurisdiction is governed by 28 U.S.C. § 1367(a),

which states, in pertinent part, that “the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the action within

such original jurisdiction that they form part of the same case or controversy

under Article III of the United States Constitution.” Id. “For purposes of

section 1367(a), claims form part of the same case or controversy if they derive

from a common nucleus of operative fact.” Shahriar v. Smith & Wollensky Rest.

Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011) (internal citation and quotation marks

omitted). Because Eng’s EPA, NYSHRL, and NYCHRL claims all arise out of the

same common nucleus of operative facts, the district court did not abuse its

discretion in exercising supplemental jurisdiction over the NYSHRL and

NYCHRL claims. See Treglia v. Town of Manlius, 313 F.3d 713, 723 (2d Cir.

2002) (exercise of supplemental jurisdiction was proper where plaintiff’s state and

federal claims arose “out of approximately the same set of events”).

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK