The opinion
Fit E PFICE
IN CLERK'S
U.S. DISTRICT COURT E.D.NY.
x FEB 26200 *
UNITED STATES DISTRICT COURT
BASTERNDISTRICTOFNEW YORK LONG ISLAND OFFICE
DANIELLE DAVIDSON, SUSAN CHODKOWSKI]I,
GARY VOLPE, MATTHEW SARTER, WENDY
NEAL, DEBORAH PEDENZIN, ROSANNA MEMORANDUM &
LAURO, and all others similarly situated, ORDER
CV 18-1182 (GRB)
Plaintiffs,
v.
COUNTY OF NASSAU,
Defendant.
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GARY R. BROWN, United States District Judge:
Before the Court is a motion for judgment on the pleadings and for leave to amend the
amended answer by defendant County of Nassau (“defendant” or “County”). Docket Entry
(“DE”) 88. For the reasons set forth herein, the motion for judgment on the pleadings is
GRANTED to the extent set forth herein, and plaintiffs and defendant are given leave to replead.
PROCEDURAL BACKGROUND
Plaintiffs Danielle Davidson, Susan Chodkowski, Gary Volpe, Matthew Sarter, Wendy
Neal, Deborah Pedenzin, and Rosanna Lauro (collectively “plaintiffs’”) commenced this putative
collective and class action by filing a verified complaint on February 23, 2018. Compl., DE 1.
The case was originally assigned to the Honorable Arthur D. Spatt. Defendant filed an answer
on May 1, 2018, and an amended answer on May 18, 2018. DE 11, 18. On July 20, 2018,
defendant moved to consolidate this case with Chodkowski v. County of Nassau, No. 16-CV-
5770, which case was assigned to the Honorable Sandra J. Feuerstein. DE 17. On September
18, 2018, Judge Spatt reassigned the case to Judge Feuerstein, but denied without prejudice the
motion to consolidate this case with Chodkowski v. County of Nassau. Electronic Order dated
Sept. 18, 2018.
Plaintiffs moved to conditionally certify a collective action on November 8, 2018, and
moved to certify a class action on December 3, 2018. DE 34, 41. On February 11, 2019, the
case was transferred to the undersigned as U.S. Magistrate Judge upon the parties’ consent to
U.S. Magistrate Judge jurisdiction, DE 45,
On June 6, 2019, the Court conditionally certified a collective action. Minute Order
dated June 6, 2019; DE 80. On July 9, 2019, the motion to certify a class action was deemed
withdrawn without prejudice to renewal at a later date. Electronic Order dated July 9, 2019.
Several parties consented to joining the collective action. See DE 57-59,62-68, 70-72, 73-79.
On December 12, 2019, defendant filed the instant motion. DE 88.
FACTUAL BACKGROUND
Plaintiffs assert violations of the federal Equal Pay Act, 29 U.S.C. § 206(d)(1), and the
New York State Equal Pay Act, New York Labor Law (“NYLL”) § 194, based upon allegations
that the predominantly female Police Communication Operators and Police Communication
Operator Supervisors (collectively “PCOs”) receive substantially less compensation than the
predominantly male Fire Communication Technicians and Fire Communication Technician
Supervisors (collectively “FCTs”) within the County’s Police Department. Compl. J 2, 69-79. !
Plaintiffs are current and former PCOs within the County’s Police Department Compl. □
2,29. The duties of PCOs include “receiving telephone calls placed on the County’s 911
' Several of the plaintiffs’ names appear to be male names, but this issue is not raised by any of
the parties.
2.
emergency system, deciding the appropriate response to each of the calls, and if necessary,
dispatching the appropriate aid depending upon the gravity of the emergency situation.” Jd. at J
29. Plaintiff alleges that “presently approximately 200 [PCOs] employed by the County, over
90% of whom, are female.” /d. at J 30.
As to FCTs, plaintiffs allege that FCTs are “employed within the same facility and
perform virtually identical duties for the County” as PCOs. Jd. at FJ 2, 40. Plaintiffs also allege
that the “overwhelming majority” of the FCTs are male. /d. at 7 41.
LEGAL STANDARD
Under the Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but
early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). Courts review Rule 12(c) motions under the same standard as a Rule 12(b)(6) motion
to dismiss. Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009); Arciello v. Cty. of Nassau, No.
16-CV-3974 (ADS)(SIL), 2019 WL 4575145, at *7 (E.D.N.Y. Sept. 20, 2019). Thus, the Court
will “accept all factual allegations in the complaint as true and draw all reasonable inferences in
[plaintiffs’] favor.” Johnson, 569 F.3d at 43 (citation omitted).
In the context of a discrimination complaint, the Second Circuit has 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 a minimum assert nonconclusory
factual matter sufficient to “‘nudgef[] [its] claims’ . . . ‘across the line from conceivable to
plausible’” to proceed... .” E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247 (2d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009); citing Bell Atl. Corp. v. Twombly, 550 US.
544, 570 (2007); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). Furthermore, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.” Kairam v. West Side GI, LLC, No. 19-447-CV, 2019 WL 6691512, at
*1 (2d Cir. Dec. 9, 2019) (quoting Jgbal, 556 U.S. at 678). “A claim is plausible on its face
‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Jd. (citing Iqbal, 556 U.S. at 678).
DISCUSSION
1. Federal Equal Pay Act
Defendant argues that because “the Complaint only alleges in conclusory fashion that
PCOs and FCTs perform ‘virtually identical’ duties, without stating the FCTs’ duties at all,”
plaintiffs have failed to plead that PCOs and FCTs perform “equal work on jobs requiring equal
skill, effort, and responsibility” under the federal Equal Pay Act. Def.’s Br. 13, DE 88-1; Def.’s
Reply Br. 7, DE 90. Plaintiffs allege that the allegation that PCOs and FCTs perform “virtually
identical duties” is “a descriptor for the requisite job duties,” and “more than sufficiently
establishes a plausible claim for relief.” Pls.’ Br. 12-13, DE 89.
“[T]o prove a violation of the [federal Equal Pay Act], a plaintiff must demonstrate that
*[(1)] the employer pays different wages to employees of the opposite sex; [(2)] the employees
perform equal work on jobs requiring equal skill, effort, and responsibility; and [(3)] the jobs are
performed under similar working conditions.’” Port Auth. of N.Y. & N.J., 768 F.3d at 254-55
(citations omitted); see also Kairam, 2019 WL 6691512, at *1. As to the second prong, a
“plausible [federal Equal Pay Act] claim must include ‘sufficient factual matter, accepted as true’
to permit the reasonable inference’ that the relevant employees’ job content was ‘substantially
equal.’” Port Auth. of N.Y. & N.J., 768 F.3d at 256; see also Kairam, 2019 WL 6691512, at *1.
In Equal Employment Opportunity Commission v. Port Authority of New York and New
Jersey, the EEOC asserted that the Port Authority of New York and New Jersey “paid its female
nonsupervisory attorneys at a lesser rate than their male counterparts for ‘equal work,” in
violation of the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d).” 768 F.3d at 248-49. The
Second Circuit held the complaint cannot survive a motion to dismiss where it “stat[ed] nothing
about the actual content of the work done by the dozens of attorneys either within or across
practice areas at the Port Authority,” but instead “alleged, in conclusory fashion that, ‘all of the
non-supervisory attorney jobs in [the Port Authority’s] law department are substantially
equivalent and require the same, skill, effort, and responsibility.” Jd. at 251; see also id. at 256-
57.
Here, as in Port Authority, plaintiffs fail to allege “‘sufficient factual matter, accepted as
true’ to permit the reasonable inference’ that the relevant employees’ job content was
‘substantially equal.”” Port Auth. of N.Y. & N.J., 768 F.3d at 256. Rather, the complaint merely
alleges that male FCTs are “employed within the same facility and perform virtually identical
duties for the County” as PCOs. Compl. §f 2, 40. As the Second Circuit has made clear, such
conclusory assertions are insufficient to survive a motion for judgment on the pleadings.
Therefore, the federal Equal Pay Act claim is dismissed without prejudice.
2. New York State Equal Pay Act
The County argues that because it is a “governmental agency” as defined by NYLL §
190(3), it is exempt from the New York State Equal Pay Act claim under NYLL § 194. Def.’s
Br. 9; Def.’s Reply Br. 1. Plaintiffs argue that Nassau County is not a “governmental agency”
because “Nassau County is a municipal government, it cannot also be an agency of the same
government pursuant to the provisions of the NYLL.” Pls.’ Br. 5; see also DE 42-3 at 21-22.
Under Federal Rule of Civil Procedure 17(b), “an entity is suable in federal court only if
it would be suable under the laws of the state where it was created.” Arciello, 2019 WL
4575145, at *7. NYLL § 194 “prohibits employers from adopting pay disparities on the basis of
sex.” Eng v. City of New York, No. 15-CV-1282 (DAB), 2017 WL 1287569, at *3 (S.D.N.Y.
Mar. 29, 2017); see also Hodgson v. City of New York, No. 12-CV-1634 (HB), 2013 WL
840874, at *6 (S.D.N.Y. Mar. 7, 2013). However, because NYLL § 190(3) provides that “(t]he
term ‘employer’ shall not include a governmental agency,” courts have held that plaintiffs cannot
bring suit under NYLL § 194 against a governmental agency. Eng, 2017 WL 1287569, at *3
(holding that the City of New York is a governmental agency under NYLL § 190(3)); see also
Hodgson, 2013 WL 840874, at *6 (same).
In Arciello v. County of Nassau, Judge Spatt analyzed whether the County of Nassau
qualified as a governmental entity under NYLL § 190(3) in the context of a similar claim under
NYLL. 2019 WL 4575145, at *7-8. Plaintiffs there argued that “the County is not an exempt
governmental agency under NYLL § 190(3) because it is not a subdivision of a municipality, it is
the municipality itself.” Jd. at * 7. Rejecting plaintiffs’ argument, Judge Spatt concluded that
“Nassau County is a governmental agency within the meaning of the NYLL.” Jd.
Thus, in Arciello, Judge Spatt rejected the precise argument that plaintiffs make here that
the County cannot be a governmental agency because it cannot be a subdivision of itself.? Pls.’
Br. 5; cf 2019 WL 4575145, at *7. As in Arciello, the County of Nassau is a governmental
2 The Arciello case involved the same plaintiffs’ and defendant’s counsel as in this case.
entity within the meaning of NYLL § 190(3), and thus, plaintiffs’ New York State Equal Pay Act
claim under NYLL § 194 must be dismissed with prejudice.’
3. Leave to Replead
Both parties seek leave to replead. Plaintiffs seeks leave to replead the complaint in the
event that the complaint does not state a plausible claim for relief. Pls.’ Br. 13. Defendant seeks
leave to amend the amended answer to raise affirmative defenses under the federal Equal Pay
Act. Def.’s Br. 16.4
As Judge Pauley held,
Leave to amend a pleading shall be “freely give[n] . . . when justice so requires,” Fed. R.
Civ. P. 15(a), and should not be denied unless: (1) the movant acts in bad faith, (2) the
amendment sought will be futile, (3) the motion is filed after undue delay, or (4) granting
leave to amend would prejudice the adverse party, Milanese v. Rust-Oleum Corp., 244
F.3d 104, 110 (2d Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The
decision to grant or deny is within the discretion of the district court. Foman,371 U.S. at
182; United States v. Cont'l Ill. Nat'l Bank & Tr. Co. of Chi., 889 F.2d 1248, 1254 (2d
Cir. 1989).
Ambac Assurance Corp. v. U.S. Bank Nat'l Ass’n, No. 17-CV-2614, 2020 WL 42245, at *1
(S.D.N.Y. Jan. 3, 2020). The “‘permissive standard’ of Rule 15 ‘is consistent with [the Second
Circuit’s] strong preference for resolving disputes on the merits.” Loreley Financing (Jersey)
No. 3 Ltd. V. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015), “When a motion to
3 Plaintiffs also argue that because defendant did not previously assert the affirmative defense
that the County is not a governmental agency under NYLL § 190(3), that argument is waived
under Rule 8(c). Pls.’ Br. 9. However, as held by Judge Spatt, “a party may raise an affirmative
defense for the first time in a Rule 12(c) motion,” and the affirmative defense may even be raised
for the first time as late as the summary judgment stage. Arciello, 2019 WL 4575145, at *4-5.
Here, the affirmative defense is not waived as defendant is entitled to raise it as part of the Rule
12(c) motion, and plaintiffs had notice and opportunity to respond to the arguments in the
context of this motion. Cf id. at *5.
‘Tn light of the dismissal with prejudice of the New York State Equal Pay Act claim, defendant’s
request to amend the Amended Answer to add affirmative defenses against NYLL § 194 is moot.
dismiss is granted, the usual practice is to grant leave to amend the complaint.” Eliya, Inc. v.
Kohl's Corp., No. CV 15-2123(JFB)(GRB), 2016 WL 929266, at *8 (E.D.N.Y. Feb. 22, 2016),
report and recommendation adopted, 2016 WL 929321 (E.D.N.Y. Mar. 9, 2016) (citation
omitted).
Here, the Court grants both parties leave to replead. There is no evidence of bad faith,
undue delay, or prejudice at this early juncture. Furthermore, neither amendment of the
complaint nor the Amended Answer would be futile. See Pls.’ Br. 13 (discussing some of the
similarities and differences between PCOs and FCTs); Def.’s Br. 16 (seeking to add the
affirmative defense that “any differential in pay between the PCOs and the FCTs is ‘based on
any other factor other than sex,’ under 29 U.S.C. § 206(d)(1)(iv)). As both parties cite, it is
“entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits
to be avoided on the basis of . .. mere technicalities. ... The Rules themselves provide that they
are to be construed ‘to secure the just, speedy, and inexpensive determination of every action.”
Def.’s Br. 17 (quoting Foman v. Davis, 371 U.S. 178, 181-82 (1962)); Pls.’ Br. 13 (citing
same).°
CONCLUSION
Based on the foregoing, defendant’s motion for judgment on the pleadings is hereby
GRANTED. The federal Equal Pay Act claim is dismissed without prejudice, and the New York
State Equal Pay Act claim is dismissed with prejudice. Plaintiffs are directed to file its amended
5 The Court notes that several of the named plaintiffs appear to be male. Plaintiffs’ counsel
should carefully consider whether male PCOs have standing in this action. Furthermore, it has
been brought to the Court’s attention that one named plaintiff may be deceased. The parties shall
take steps under Federal Rule of Civil Procedure 25, if appropriate. -
complaint within fourteen (14) days of this Memorandum and Order. Defendant is directed to
file a second amended answer within fourteen days (14) after the plaintiff's service of the
amended complaint.
SO ORDERED.
Dated: Central Islip, New York
February 26, 2020 ‘s/ Gary R. Brown
GARY R. BROWN
United States District Judge