“An attorney is an attorney is an attorney” – Not So Fast.

By John A. Polinko, Esq.

When is an attorney just like any other attorney, and when is an attorney distinguishable from his or her colleagues? When the Equal Employment Opportunity Commission pursued a claim under the Equal Pay Act of 1963 and its theory, limited to the attorneys working for the Port Authority of New York and New Jersey, was that all attorneys’ jobs were equal regardless of their work – thus, “an attorney is an attorney is an attorney” – the EEOC found itself on the wrong side of a motion for judgment on the pleadings.

In Equal Employment Opportunity Commission v. Port Authority of New York and New Jersey, the United States District Court for the Southern District of New York held that the EEOC, based upon its failure to allege any facts concerning the Port Authority’s attorneys’ actual job duties, deprived the Court of any basis from which to draw a reasonable inference that the attorneys performed “equal work,” thus providing grounds for dismissal of the EEOC’s complaint against the Port Authority. The EEOC appealed the District Court’s decision and the United States Court of Appeals for the Second Circuit (13-2705-cv), hearing argument in May of this year, recently affirmed.

The EEOC’s complaint was the culmination of a three-year investigation, brought about by a charge of discrimination filed by a female attorney with the Port Authority. The Port Authority alleged, inter alia, that the Port Authority violated the EPA by paying non-supervisory female attorneys at rates less than the rates paid to males for substantially equal work for jobs, performed under similar working conditions, that require equal skill, effort, and responsibility. Following the Port Authority’s answer to the complaint, the Port Authority, at the direction of the District Court, served upon the EEOC interrogatories to clarify the EEOC’s position. The EEOC’s responses, including a table prepared by the EEOC that identified fourteen female non-supervisory attorneys as claimants as well as a list of alleged comparators, were treated as a functional amendment to the complaint. The District Court, finding this table somewhat random and leaving out any extraordinary differences between the claimants and comparators, inquired of the EEOC if the theory was that all attorneys’ jobs were equal regardless of their work? Upon the EEOC’s acknowledgement that, for purposes of this action, that was its position, the District Court permitted the Port Authority leave to file its motion for judgment on the pleadings.

In granting the Port Authority’s motion, the District Court found that the EEOC’s complaint, standing alone, was insufficiently pleaded as it accomplished nothing more than recite the language of the statute. The District Court found the EEOC failed to adequately allege that the attorneys’ jobs required equal skill and effort. Furthermore, by only presenting broad generalities regarding, among other things, skill, effort and responsibility, the EEOC failed to touch upon the attorneys’ actual job duties, thus not allowing the inference that the attorneys’ jobs required “substantially equal work.”

On appeal, the Second Circuit, recognizing that pleading standard employed in reviewing discrimination complaints is somewhat fluid, held that “while a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss…it must at minimum assert nonconclusory factual matter sufficient to ‘nudge claims…across the line from conceivable to plausible’ to proceed.” Even with somewhat lower pleading standards, the Second Circuit agreed with the District Court’s ruling. The generalizations make by the EEOC, particularly with respect to what the Port Authority required of all nonsupervisory attorneys, provided no support for the EEOC that attorneys working for the Port Authority, female or male, were required to perform substantially equal work. Straying just slightly from pure de novo review, the Second Circuit found it of note that after a three year investigation, for which the Port Authority fully cooperated, the EEOC was unable to allege a “single nonconclusory fact supporting its assertion that the claimants’ and comparators’ jobs required ‘substantially equal’ skill and effort.’”

United States Court of Appeals for the Second Circuit
Equal Employment Opportunity Commission v. Port Authority of New York and New Jersey
Case No. 13-2705-cv
Argued: May 27, 2014
Decided: September 29, 2014