Federal Judge Boots Pay Disparity Lawsuit Against Port Authority

U.S. Judge Dismisses Pay Disparity Lawsuit Against Port Authority
The New York Law Journal by Mark Hamblett  -  May 21, 2012

Allegations that women lawyers at the Port Authority of New York and New Jersey are paid thousands of dollars less each year than men doing substantially equal work have been thrown out by a Manhattan federal judge.  Southern District Judge Naomi Reice Buchwald (See Profile) dismissed a lawsuit on May 18 brought by the Equal Employment Opportunity Commission (EEOC) on behalf of 14 non-supervisory women lawyers in the agency's in-house law department.  The suit, EEOC v. Port Authority of New York and New Jersey, 10. Civ. 7462, was brought under the Equal Pay Act of 1963, 29 U.S.C. §206(d)(1), following a three-year investigation by the commission. The case also alleged age discrimination under the Age Discrimination in Employment Act.  Buchwald heard oral arguments on dispositive motions on the equal pay component of the lawsuit on April 24.  In her ruling, the judge said the EEOC's complaint is "clearly insufficiently pleaded," particularly its "conclusory allegation" that women in the law department are paid less than men.  "The only remotely substantive allegations are that the relevant attorneys 'have substantially similar lengths of service and experience' and 'hav[e] the same job code,'" Buchwald said. "These allegations do not speak at all to the effort or responsibility required of the jobs, and they mention the requisite skill only cursorily. Without more, they are insufficient to meet the plausibility and fair notice standard."  At a June 2011 conference, the judge directed the EEOC to respond to interrogatories so the Port Authority could better determine the grounds of the Equal Pay Act claims.  She said in her decision that some of the answers to those interrogatories "do little more than recite broad generalities about attorneys in general, rather than say anything about Port Authority's attorneys in particular."  The judge continued, "While it is no doubt true that the attorneys in Port Authority's law department all have 'the same professional degree and admission to the bar,' utilize 'problem-solving and analytical skills' as well as 'professional judgment and legal skills,' and work 'under pressures and deadlines,' the same may be said of virtually any practicing lawyer. We are hard-pressed to deem a listing of these abstract generalities a true comparison of the content of the jobs at issue."  The EEOC had argued that it didn't need to give a detailed description of the requirements of the claimants' and comparators' jobs because the Port Authority doesn't treat the jobs as different.  But Buchwald rejected this argument as well.  "It strains credulity to argue that Port Authority, which does not set wages based on a lockstep scale, does not factor into its pay decisions the kind and quality of work its attorneys perform," she said. "The allegations as a whole simply do not rise to the requisite level of facial plausibility."  The decision still leaves alive the EEOC's allegations that the Port Authority discriminated on the basis of age by firing older workers.  Also still pending in Newark federal court is another suit charging discrimination at the Port Authority.  Donald Burke, a former high level attorney at the agency, filed suit in 2011 claiming he refused a request from higher-ups in the general counsel's office to alter job evaluations to make a disparity in pay appear justified.  When he refused, Burke claims in Burke v. Port Authority, 11-cv-6853, that two of the lowest paid women in the department, Shirley Spira and Dolores Ward, were fired in 2007 to make the disparity less stark. Ward, 55 when the Southern District EEOC suit was filed, and Shirley Spira, 57, both had their pay claims rejected by Buchwald.  The Port Authority said in a statement on May 18 that "the agency is committed to a merit-based pay system—one in which employees are paid based on their performance and quality of their work, consistent with business necessity, not on their gender."  Noting that Buchwald had rejected the EEOC pay claims after a thee-year investigation, the Port Authority said, "We stand firmly behind paying people based on skill, effort and responsibility."  EEOC attorney Louis Graziano told the Law Journal in a 2010 interview that the Port Authority had roughly 50 nonsupervisory attorneys, about 20 of whom were women.  Attorneys in those positions could be earning upward of $150,000, Graziano said. However, he estimated that entry-level nonsupervisory lawyers were earning under $100,000.  Rosemary Alito and Laura Stutz of K& L Gates represented the Port Authority.  Konrad Batog represented the EEOC.  Mark Hamblett can be contacted at mhamblett@alm.com. Mary Pat Gallagher of the New Jersey Law Journal, an affiliate, contributed to this report.