Spatz v. Lee's Summit R-7 School District Case is consolidated with, Case No. 4:21-CV-00294-RK. All filings shall be submitted in this case, Case No. 4:20-cv-00448-RK

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

NANCY SPATZ, ON BEHALF OF )

THEMSELVES AND OTHERS )

SIMILARLY SITUATED; et al, )

)

Plaintiffs, ) Case No. 4:20-cv-00448-RK

)

v. )

)

LEE'S SUMMIT R-7 SCHOOL DISTRICT, )

)

Defendant. )

ORDER

Before the Court is Defendant Lee’s Summit R-7 School District’s (“District”) motion to

dismiss the Equal Pay Act claims of Rhonda Ireland, Stacie Myers, Jessica Hill, and Michelle

Michaelson-Gard. (Doc. 79.) The District’s motion seeks to dismiss Plaintiffs’ Third Amended

Complaint as to allegations made by these Plaintiffs, who are teachers employed by the District

(“Teacher Plaintiffs”). The motion is fully briefed. (Docs. 80, 85, 89.) For the reasons below, the

motion is GRANTED.

Procedural History

On June 5, 2020, Plaintiffs filed their initial Complaint naming Nancy Spatz, Dawn Carl,

Gail Grygar, Cheryl Peterson, and Teri Hargrave (Field Technology Specialists); Heather Kenney,

Jodi Mallette, and Beth Ratty (Elementary School Principals); and Stacy Orf and Brooke

Morehead (Elementary School Assistant Principals) as representative Plaintiffs on behalf of a

collective of similarly situated female employees of the District. (Doc. 1.) With leave of Court,

Plaintiffs filed an Amended Complaint October 2, 2020, adding Joy Brigman, an Elementary

School Assistant Principal, as another representative plaintiff. (Doc. 27.)

On December 21, 2020, Plaintiffs Dawn Carl, Gail Grygar, Teri Hargrave, Heather

Kenney, Jodi Mallette, Cheryl Peterson, and Beth Ratty filed a notice of voluntary dismissal with

prejudice of their claims against the District. (Doc. 39.) Plaintiffs Nancy Spatz (Field Technology

Specialist), Brooke Morehead (Elementary School Assistant Principal), and Stacy Orf

(Elementary School Assistant Principal) remained as representative plaintiffs.

On January 15, 2021, with leave of Court, Plaintiffs filed a Second Amended Complaint, adding

Jill Besanceney, Field Technician, as a representative plaintiff. (Doc. 49.) On May 14, 2021,

Plaintiffs moved for leave to file a Third Amended Complaint to add additional representative

plaintiffs: teachers Rhonda Ireland, Stacie Myers, Jessica Hill, and Michelle Michaelson-Gard

(“Teacher Plaintiffs”). (Docs. 62, 62-1.) The motion was opposed and fully briefed, and on July

8, 2021, the Court granted leave for Plaintiffs to file their Third Amended Complaint (Doc. 70.),

which Plaintiffs filed July 13, 2021. (Doc. 71.)

Factual Background

For purposes of analyzing the District’s motion to dismiss for failure to state a claim upon

which relief may be granted, the Court “accept[s] the allegations contained in the complaint as true

and draw[s] all reasonable inferences in favor of the nonmoving party.” Cole v. Homier Distrib.

Co., 599 F.3d 856, 861 (8th Cir. 2010) (citation and quotation marks omitted).

Plaintiffs’ Third Amended Complaint (Doc. 71) sets forth the following allegations.

Defendant is a public school district organized under Missouri law and located in Jackson County,

Missouri. (Doc. 71, ¶ 1.) Plaintiffs are female field technology specialists, elementary school

assistant principals, field technicians, and teachers employed by the District. (Id., ¶¶ 4-12.)

Plaintiffs’ putative, opt-in collective action brings one count alleging the District pays Plaintiffs

less than males in the same positions for performing substantially equal work requiring equal skill,

effort, and responsibility performed under similar conditions, in willful violation of the Equal Pay

Act, 29 U.S.C. § 206(d)(1) (“EPA”).1 (Id., ¶¶ 4-12, 42-43.)

Employees’ salaries are determined by a salary schedule similar to that required by Mo.

Rev. Stat. § 168.110.2 (Id., ¶ 18). Throughout Plaintiffs’ employment with the District, the salary

1 Plaintiffs’ Fair Labor Standards Act action is based on the District’s alleged violation of the Equal

Pay Act (“EPA”). “The EPA was enacted in 1963 as an amendment to the Fair Labor Standards Act

(FLSA),” and in 1974 it was extended “by applying it to government entities, as well as private industry.

The [EPA] was passed in the hopes that it would eliminate society’s age-old belief in the inferiority of

women and the economic and social consequences that flowed from that belief.” Kalsoom K. Malik, Equal

Pay Act, 3 Geo. J. Gender & L. 719, 719–20 (2002) (internal footnotes and quotation omitted).

2 Section 168.110, part of Missouri’s Teacher Tenure Act, provides:

The board of education of a school district may modify an indefinite contract

annually on or before the fifteenth day of May in the following particulars:

(1) Determination of the date of beginning and length of the next school

year;

schedules have generally, though not always, classified administrative and support salaries by

years of service (referred to as “steps”). (Id., ¶ 20.) The salary schedules also have ranges that

correspond with certain job positions. (Id.) During the relevant time period, the District has

applied the salary schedules unreasonably and unsystematically so that it pays different salaries to

men and women for equal work requiring equal skill, effort, and responsibility performed under

similar conditions and not for any reason having to do with a seniority system, a merit system, a

system that measures pay by quantity or quality of production, or any factor other than sex. (Id.)

Specifically, the District paid Plaintiffs and others similarly situated at rates less than its male

employees, even though the jobs performed by Plaintiffs and others similarly situated required

equal skill, effort, and responsibility, and were performed under similar working conditions. (Id.,

¶ 21.) Additional facts will be set forth as necessary.

Discussion

The District argues Plaintiffs fail to plead sufficient factual matter in support of the EPA

claim of the Teacher Plaintiffs. (Doc. 79.) The District contends the allegations as to the Teacher

Plaintiffs are “nothing more than threadbare recitals of the elements of an EPA claim supported

with conclusory statements of law.” (Doc. 79, ¶ 1.) The District asserts dismissal is warranted

because Plaintiffs fail to “provide any specific factual allegations regarding the Teacher Plaintiffs’

salary, experience, step placement or the salary, experience or step placement of purported male

comparators.” (Id.)

The EPA prohibits sex discrimination, specifying that:

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, except where such payment is made pursuant to

(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings

by quantity or quality of production; or (iv) a differential based on any other factor

(2) Fixing the amount of annual compensation for the following school

year as provided by the salary schedule adopted by the board of education

applicable to all teachers. The modifications shall be effective at the

beginning of the next school year. All teachers affected by the

modification shall be furnished written copies of the modifications within

thirty days after their adoption by the board of education.

other than sex: Provided, That an employer who is paying a wage rate differential

in violation of this subsection shall not, in order to comply with the provisions of

this subsection, reduce the wage rate of any employee.

29 U.S.C. § 206(d)(1). The elements of a sex-based wage discrimination claim under the Equal

Pay Act are “(1) [Plaintiff] was paid less than a male employed in the same establishment, (2) for

equal work on jobs requiring equal skill, effort, and responsibility, (3) which were performed under

similar working conditions.” Heisler v. Nationwide Mut. Ins. Co., 931 F.3d 786, 795 (8th Cir.

2019) (citation and quotation marks omitted).

I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to dismiss a

party’s claims for “failure to state a claim upon which relief can be granted[.]” To survive a motion

to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible if “the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility

standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

(citing Twombly, 550 U.S. at 556). Plaintiff’s obligation requires a pleading to contain “more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 554. A complaint “must contain either direct or inferential allegations

respecting all the material elements necessary to sustain recovery under some viable legal theory.”

Id. at 562 (internal quotation marks omitted).3

Plaintiffs attach undue importance to the fact that “the Court has already found that the

Teacher Plaintiffs’ claims are ‘logically and reasonably related’ to the claims of the other

3 Though they cite portions of Iqbal and Twombly in their brief, Plaintiffs erroneously apply the

pleading standard of Conley v. Gibson, 355 U.S. 41 (1957) and its progeny in their briefing. (Doc. 85 at 2,

4.) However, “[Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)] retired the Conley no-set-of-facts

test[.]” Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009). The Twombly Court described the phrase “no set of

facts” as “best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim

has been stated adequately, it may be supported by showing any set of facts consistent with the allegations

in the complaint.” 550 U.S. at 563 (citations omitted). “Conley, then, described the breadth of opportunity

to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a

complaint’s survival.” Id.

Plaintiffs” and “the District concedes” that these other Plaintiffs “have adequately pled a cause of

action under the EPA.” (Doc. 85 at 3, 5) (emphasis added.) In emphasizing this finding, Plaintiffs

conflate the standard governing joinder4 (which the Court summarily noted in dicta to be satisfied

sufficiently to survive the District’s suggestions opposing Plaintiff’s motion for leave to amend

(Doc. 70 at 2)) with the test governing the Court’s analysis of a motion to dismiss, explained in

detail above and applied in the following section.5 See In re Prempro Prod. Liab. Litig., 591 F.3d

613, 622 (8th Cir. 2010) (noting the test for permissive joinder under Rule 20 is “not a rigid test

and is meant to be read as broadly as possible whenever doing so is likely to promote judicial

economy”) (citation and quotation marks omitted).

II. Teacher Plaintiffs Fail to State an EPA Claim

The burden of named plaintiffs6 in a putative collective action under FLSA in facing a

motion to dismiss is to allege “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. Plaintiffs’ pleading burden is achieved by pleading “factual content

that allows the court to draw the reasonable inference that the defendant is liable for” paying

employees at a rate less than the rate at which he pays wages to employees of the opposite sex for

equal work on jobs requiring equal skill, effort, and responsibility, and which are performed under

4 The standard governing permissive joinder, as the Court allowed in granting leave to Plaintiffs to

file their Third Amended Complaint, is set forth in Rule 20(a)(1), which allows joinder of plaintiffs where

“(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of

the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or

fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20.

5 Another distinct standard is applied in the Court’s Order granting in part and denying in part

Plaintiffs’ motion for conditional certification, entered contemporaneously with this Order. In that context,

“[a] district court may certify a case as a [FLSA] collective action only if members of the class are ‘similarly

situated’ or raise similar legal issues regarding coverage, exemption, or nonpayment of wages.” Taylor v.

Bear Communs., LLC, No. 4:12-CV-01261-BCW, 2013 WL 3270971, at *2 (W.D. Mo. June 27, 2013)

(citation omitted).

6 Plaintiffs appear to argue the Court should apply only the burden applicable to opt-in plaintiffs to

join an established collective action, rather than that of a named plaintiff facing a motion to dismiss. The

burden applicable to opt-in plaintiffs to join an action is different than the burden applicable in sufficiently

pleading a claim. In representing the collective, the named Plaintiffs, “need only file [the] written consents

[of the opt-in collective plaintiffs]” in order “to state a collective EPA claim on behalf of those similarly

situated[.]” Suzuki v. State Univ. of New York Coll. at Old Westbury, No. 08-CV-4569 TCP, 2013 WL

2898135, at *5 (E.D.N.Y. June 13, 2013). The opt-in “EPA plaintiffs must expressly opt in to a case by

written notice pursuant to 29 U.S.C. § 216(b).” Id. (internal quotation marks omitted). However, this opt-

in procedure does nothing to lessen the pleading requirements of the named Plaintiffs in surviving a motion

to dismiss.

similar working conditions. Iqbal, 556 U.S. at 678; § 206(d)(1). As set forth above, Plaintiffs’

pleading must contain “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action” is insufficient. Twombly, 550 U.S. at 554. Plaintiffs are obligated

to set forth “either direct or inferential allegations respecting all the material elements” of their

legal theory. Id. at 562 (citation and quotation marks omitted).

In Ewald v. Royal Norwegian Embassy, the court found the plaintiff alleged sufficient facts

to state a plausible claim of gender discrimination under the EPA. 902 F. Supp. 2d 1208, 1219 (D.

Minn. 2012). The plaintiff’s complaint identified a male comparator, detailed many of the job

responsibilities considered parallel between the plaintiff’s position and that of the male

comparator, alleged a $40,000 salary disparity, and alleged various representations from the the

District that the two positions were considered parallel and part of a team. Id.

In contrast, where plaintiffs made only conclusory allegations that male employees were

paid more than female employees, numerous district and circuit courts have dismissed and

affirmed dismissal of EPA claims. See Suzuki v. State Univ. of New York Coll. at Old Westbury,

No. 08–CV–4569 TCP, 2013 WL 2898135, at *4 (E.D.N.Y. June 13, 2013) (holding “[b]ald

allegations that male employees were paid more than female employees ... will not survive a

motion to dismiss....” and noting that “the Second Circuit and district courts [have] expressly held

that [ ] conclusory allegations [can]not withstand a Rule 12(b)(6) motion to dismiss an EPA claim”

and that “district courts have also dismissed EPA claims where a plaintiff failed to allege how his

or her position and the comparison position were substantially similar”); Arafat v. Sch. Bd. of

Broward Cty., 549 F. App’x 872, 875 (11th Cir. 2013) (affirming district court’s dismissal of EPA

claim where plaintiff “did not plead the facts comparing her skill, effort, and responsibility levels

to those younger males who were allegedly paid more than her”); Unger v. City of Mentor, 387 F.

App’x 589, 595 (6th Cir. 2010) (“[C]omplaint [asserting EPA claim] cites nothing more than the

claim’s legal elements, neglecting to provide any factual basis in support.”); Boudreaux v. Stranco

Field Servs., LLC, No. CV 18-5569, 2019 WL 2142045, at *7 (E.D. La. May 16, 2019) (dismissing

EPA claim where plaintiff identified two potential male comparators but “alleged nothing about

the skill, effort, or responsibility required by the performance of either’s position – in fact, making

no reference at all to what position” the comparators held “and ma[de] bare mention of that

required by her own”); Shafer v. Young Auto. Grp., Inc., No. 117CV00160JNPEJF, 2018 WL

4688342, at *2 (D. Utah Sept. 28, 2018) (dismissing claim where complaint did not state what the

“similar job duties” were between plaintiff and comparator, specify the conditions under which

they were performed, or identify the “equal duties and responsibilities”); Muldrew v. Joseph

McCormick Const. Co., No. CIV.A. 14-27, 2014 WL 3890336, at *7 (W.D. Pa. Aug. 8, 2014)

(dismissing claim where the plaintiff’s claim constituted only “a handful of vague and conclusory

statements similar to the following: The Plaintiff will show that the Defendant paid her less than

it paid her male co-workers who performed jobs which required the same skill, effort and

responsibility and were performed under the same working conditions, as her job.”).7

Here, Teacher Plaintiffs, fail to identify any potential comparator or comparators; allege

his or their positions; allege how Teacher Plaintiffs’ positions and the comparison positions are

substantially similar; plead facts comparing Teacher Plaintiffs’ skill, effort, and responsibility

levels to those of any comparator; state what the “similar job duties” are between Teacher Plaintiffs

and comparators, specify the conditions under which they were performed, or identify the “equal

duties and responsibilities” that Teacher Plaintiffs allegedly share with any comparators. In view

of the sparse allegations in the Third Amended Complaint supporting the Teacher Plaintiffs’ EPA

claim and the abundant authority supporting the necessity of more factual support for an EPA

7 See also Frasier v. General Elec. Co., 930 F.2d 1004, 1007-08 (2d Cir. 1991) (allegation that

plaintiff was not receiving equal pay for equal work too vague to withstand motion to dismiss); Lehman v.

Bergmann Assocs., Inc., 11 F. Supp. 3d 408, 420 (W.D.N.Y. 2014) (dismissing claim where plaintiff made

only conclusory allegations that male employees were paid more than female employees and failed to allege

how her position and that of the comparator were similar); Lacey v. Carroll McEntee & McGinley, Inc.,

No. 03 Civ. 8832, 1994 WL 592158, at *3 (S.D.N.Y. Oct.26, 1994) (granting motion to dismiss complaint

in the absence of any factual information to support allegation of disparate wages, equal performance level

and similar working conditions); Gibson v. Jacob K. Javits Convention Ctr. of New York, No. 95 Civ. 9728,

1998 WL 132796, at *3 (S.D.N.Y. Mar.23, 1998); (dismissing EPA claims where the plaintiffs failed to

allege how their position and the comparison position were substantially similar); Baumgardner v. ROA

General, Inc., 864 F. Supp. 1107, 1109 (D. Utah 1994) (holding plaintiffs did not state an EPA claim where

they “made no effort to allege how each of their positions [were] ‘substantially equal’” to the comparator’s

position); Corkern v. Stranco Field Servs., LLC, 2018 WL 4614001, at *2 (E.D. La. Sept. 26, 2018)

(plaintiff failed to plead sufficiently a prima facie reduced-salary claim under the EPA where her complaint

failed to plead specific facts to show how she in her position was paid less than male co-workers performing

a substantially equal job); Shutlz v. Dixie State Univ., No. 2:16-CV-830 TS, 2017 WL 1968651, at *12 (D.

Utah May 11, 2017) (finding supporting facts insufficient to survive a motion to dismiss where the plaintiff

provided no information as to how her work was similar to that of her colleagues with the same position

title, only that it was “substantially similar” or “substantially equal.”); Sherrod v. Prairie View A & M Univ.,

2011 WL 843936, *9 (S.D. Tex. Mar. 8, 2011) (granting motion to dismiss where the plaintiff’s

“compensation claims [were] no more than a formulaic recitation of the elements of an equal pay cause of

action”).

claim to survive a motion to dismiss, Teacher Plaintiffs fail to state a claim for violation of the

EPA.

III. Leave to Amend

Plaintiffs request, in the alternative, leave to amend the Complaint in order to address any

insufficiencies.

“A district court may appropriately deny leave to amend where there are compelling

reasons such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the non-moving party, or futility of the

amendment.” Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065

(8th Cir. 2005) (internal quotation marks omitted). “Unexcused delay is sufficient to justify the

court’s denial [when] the party is seeking to amend the pleadings after the district court has

dismissed the claims it seeks to amend, particularly when the plaintiff was put on notice of the

need to change the pleadings before the complaint was dismissed, but failed to do so.” Id.

Plaintiff has previously filed two unopposed motions for leave to file an amended

complaint, each to add one additional party, which were both granted. (Docs. 24, 26, 44, 48.)

Plaintiffs filed a third motion for leave to file an amended complaint, in which they sought to join

the Teacher Plaintiffs. (Doc. 62.) The District opposed the motion. (Doc. 63.) The Court granted

the third motion for leave to amend, finding:

Plaintiffs have established good cause for leave to amend. The deadline to file an

amended complaint was January 15, 2021. During a status conference on January

13, 2021, the parties agreed they would submit an amended joint proposed

scheduling order, but it appears that was not seasonably submitted. Two months

later, the parties filed a joint motion to stay pretrial deadlines or alternatively for a

continuance of the trial setting (Doc. 59). The stay was granted and remains in

place. Additionally, the Court finds Defendant’s Rule 20(a)(2) argument without

merit because the claims are logically and reasonably related. The Court finds

Defendant’s remaining arguments, some of which were raised for the first time in

its sur-reply, not persuasive at this juncture.

(Doc. 70 at 2.) In so ruling, however, the Court expressed recognition of the District’s substantial

briefing in opposition to Plaintiffs’ motion for conditional class certification that was mooted by

the amended complaint. The Court thus warned Plaintiffs that “any future motions for leave to

amend will be viewed with caution, and the granting of any future motions for leave to amend may

be granted with Plaintiffs bearing the costs of Defendant’s associated motion practice.” (Id.)

At this point, Plaintiff’s request in the alternative for leave to amend their pleading a fourth

time comes fourteen months after this case was filed, nearly seven months after the deadline to

amend pleadings provided in the Scheduling Order (Doc. 28), and after having been previously

granted three opportunities to amend. Additionally, though discovery was stayed March 17, 2021

(Doc. 60), that stay was entered a full month after the discovery deadline of February 15, 2021,

provided in the Scheduling Order (Doc. 28), and after discovery had been in progress for nearly

eight months (see Docs. 20-22, 33). Plaintiffs “present no change in the law, no newly discovered

facts, or any other changed circumstances that would support a finding of due diligence on their

part” that would support their request for leave to amend. Speer v. Cerner Corp., No. 14-0204-

CV-W-HFS, 2015 WL 13760310, at *2 (W.D. Mo. June 19, 2015) (citing Freeman v. Busch, 349

F.3d 582, 589 (8th Cir. 2003) (affirming, under Rule 16(b), the district court’s denial of plaintiff’s

motion to amend her complaint because she provided no reasons why the amendment could not

have been made earlier or why her motion to amend was filed so late)).

The Court finds it appropriate to deny Plaintiff’s alternative request for leave to amend a

fourth time, as it is conclusory and without factual or legal support, unduly delayed, and follows

Plaintiffs’ repeated failure to cure deficiencies by amendments previously allowed.

Conclusion

Accordingly, and after careful consideration, the District’s motion to dismiss the Equal Pay

Act claims of Rhonda Ireland, Stacie Myers, Jessica Hill, and Michelle Michaelson-Gard is

GRANTED.

IT IS SO ORDERED.

/s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: November 29, 2021