Hoffmann v. St. Bonaventure University

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

PAULINE HOFFMANN,

Plaintiff,

v. DECISION AND ORDER

19-CV-679S

ST. BONAVENTURE UNIVERSITY,

Defendant.

I. Introduction

Before this Court is Plaintiff’s action seeking equal pay from her employer,

Defendant St. Bonaventure University. Plaintiff alleges that she faces discrimination as

a woman and Wiccan (Docket No. 1, Compl. ¶¶ 10, 11, 14, 15). Plaintiff was hired as

Dean of Defendant’s Russell J. Jandoli School of Journalism and Mass Communication

for a two-year term, although other Deans at the University were male and had three-year

contracts for greater compensation (id. ¶¶ 27, 28-30). On May 7, 2012, after Plaintiff

disclosed that she was Wiccan, Defendant required Plaintiff to sign a document avowing

Catholic values, a document that (for example) a Jewish faculty member would not be

required to sign (id. ¶¶ 31-35). Plaintiff claims that Defendant then forced her to resign

as Dean, leading to a significant reduction in her pay and constituting an adverse action

(id. ¶¶ 16-17, 20-22, 38). She also claims she was denied promotion as Provost, a

position with significant increase in pay (id. ¶¶ 18-19, 37).

Defendant St. Bonaventure University has moved to dismiss the Complaint

(Docket No. 11). In response to this motion, Plaintiff has cross-moved for leave to amend

the Complaint (Docket No. 13).

For the reasons stated herein, Plaintiff’s Motion for Leave to amend her Complaint

(Docket No. 131) is granted, and, based upon the Amended Complaint, Defendant’s

Motion to Dismiss (Docket No. 112) is granted and this case is dismissed.

II. Background

A. Complaint (Docket No. 1)

This is an employment discrimination action originally under Title VII, 42 U.S.C.

§§ 2000e, et seq., and the New York State Human Rights Law, N.Y. Exec. L. §§ 396, et

seq. Plaintiff originally alleged three causes (Docket No. 1). The First Cause of Action

alleged violation of Title VII based on sex and religion (id. ¶¶ 13-40). The Second Cause

of Action alleged discrimination in violation of the New York State Human Rights Law

based on sex and religion on the same allegations for First Cause of Action (id. ¶ 41).

The Third Cause of Action alleged retaliation in violation of Title VII and the Human Rights

Law (id. ¶ 43, and pages 5-8).

B. Proceedings

Defendant moved to dismiss this Complaint (Docket No. 11). Responses to this

motion were due by July 30, 2019, and any reply by August 6, 2019 (Docket No. 12).

As part of her response (see also Docket No. 13, Pl. Memo.), Plaintiff also moved

for leave to amend the Complaint (Docket No. 13). She proposes to change the First

Cause of Action to add an Equal Pay Act allegation (Docket No. 13, Ex., [proposed] Am.

1In support of her motion, Plaintiff submits the redline/strike out version of the proposed Amended

Complaint, Docket No. 13, Ex., and her Memorandum of Law, Docket No. 13. In opposition, Defendant

submits its Reply Memorandum, Docket No. 15. Plaintiff did not submit any reply.

2In support of its motion, Defendant submits its attorney’s affirmation with exhibits, the affidavits of

St. Bonaventure University officers R. Erik Seastedt (director of human resources) and Joseph E. Zimmer

(provost and vice president for academic affairs), with exhibits; Memorandum of Law, Docket No. 11. In

opposition, Plaintiff submits her Memorandum of Law, Docket No. 13, as well as her Motion for Leave to

Amend the Complaint, id. Defendant then submits its Reply Memorandum, Docket No. 15.

Compl. ¶¶ 11-[new] 39). She now claims that she was paid less than other male, non-

Wiccan Deans (id., [proposed] Am. Compl. ¶ [new] 19). She also proposes to delete her

Third Cause of Action for retaliation (id., proposed Am. Compl.).

In light of Plaintiff’s motion, Defendant was to reply in further support of its motion

and respond to Plaintiff’s motion by August 14, 2019, and Plaintiff was to reply in support

of her motion by August 21, 2019, with this Court to schedule oral argument as necessary

(Docket No. 14). While Defendant did file its reply (Docket No. 15), Plaintiff did not. Thus,

the motions are deemed submitted and oral argument is not needed.

III. Discussion

A. Applicable Standards

1. Motion to Dismiss

Defendant has moved to dismiss the Complaint on the grounds that the claims are

untimely and that it fails states a claim (Docket No. 11). Under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, the Court cannot dismiss a Complaint unless it appears

“beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d

80 (1957). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 554,

127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a Complaint must be dismissed pursuant to

Rule 12(b)(6) if it does not plead “enough facts to state a claim to relief that is plausible

on its face,” id. at 570 (rejecting longstanding precedent of Conley, supra, 355 U.S. at 45-

46); Hicks v. Association of Am. Med. Colleges, No. 07-00123, 2007 U.S. Dist. LEXIS

39163, at *4 (D.D.C. May 31, 2007). To survive a motion to dismiss, the factual

allegations in the Complaint “must be enough to raise a right to relief above the

speculative level,” Twombly, supra, 550 U.S. at 555; Hicks, supra, 2007 U.S. Dist. LEXIS

39163, at *5. As reaffirmed by the Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.

1937, 173 L.Ed.2d 868 (2009),

“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.’ [Twombly, supra, 550 U.S.] at 570 . . . . 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., at 556 . . . . The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of “entitlement to relief.”’ Id., at 557 . . . (brackets

omitted).”

Iqbal, supra, 556 U.S. at 678 (citations omitted).

A Rule 12(b)(6) motion is addressed to the face of the pleading. The pleading is

deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any

document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059 (2d Cir.

1985).

In considering such a motion, the Court must accept as true all the well pleaded

facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass,

754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general

legal conclusions necessary to prevail on the merits and are unsupported by factual

averments will not be accepted as true. New York State Teamsters Council Health and

Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002).

Defendant argues that this Court ought to consider documents that set the

chronology of the alleged events included with this motion without converting the motion

to dismiss into a motion for summary judgment (Docket No. 11, Def. Memo. at 5-8). The

Complaint references (Docket No. 1, Compl. ¶¶ 5-7), but did not include, EEOC materials

(Docket No. 11, Def. Memo. at 6). The other referenced documents Defendant claims

are either in Plaintiff’s possession or include facts within her knowledge (id.). Defendant

alternatively offers to convert its Rule 12 motion into one for summary judgment under

Rules 12(d) and 56 if necessary (id. at 7).

Defendant presents the EEOC Charge (Docket No. 11, Def. Atty. Affirm. Ex. A,

see also id. Exs. B (Notice of Charge of Discrimination sent to Defendant), C (EEOC

Memorandum)) and Right to Sue Letter (id., Ex. D) referenced in the Complaint (Docket

No. 1, Compl. ¶¶ 6, 7; see also Docket No. 13, Ex., [proposed] Am. Compl. ¶¶ 6, 7).

Plaintiff takes no position on the introduction of documents extraneous to her Complaint.

Plaintiff focused instead on seeking leave to amend her Complaint and the substance of

Defendant’s arguments (cf. Docket No. 13, Pl. Memo.).

This Court deems the EEOC documents incorporated here since it is integral to

Plaintiff’s claims. Although Plaintiff did not incorporate the actual documents in her

Complaint, she made reference to them in her pleadings, Chambers v. Time Warner, Inc.,

282 F.3d 147, 152-53 (2d Cir. 2002); 5B Charles A. Wright and Arthur R. Miller, Federal

Practice and Procedure § 1357, at 376, 377 (Civil 3d ed. 2004). Absent any objection

from Plaintiff, this Court will consider the EEOC documents (Docket No. 11, Def. Atty.

Affirm. Exs. A-D) without converting this motion into one seeking summary judgment.

A closer question is Defendant’s assertion of employment documents providing

dates of Plaintiff’s appointment and resignation as Dean and for the filling of the Provost

vacancy she applied for. Plaintiff has not objected and, in her proposed Amended

Complaint (Docket No. 13, Ex.), does not allege these dates. The amendment focuses

on her expressly alleged Equal Pay Act claim but she does not focus on the timing of

employment events. Since these arise under Rule 15 motion for leave to amend, this

Court need not convert Defendant’s motion to dismiss into a motion for summary

judgment merely because Plaintiff failed to allege the chronology for her proposed

amended claims.

2. Motion for Leave to Amend the Complaint, Rule 15

Under Federal Rule of Civil Procedure 15(a) amendment of pleadings after the

time to do so as of right requires either consent of all parties (not present here) or by leave

of the Court. Under Rule 15(a) motions for leave to amend the complaint are to be freely

given when justice requires. Granting such leave is within the sound discretion of the

Court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Zenith

Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77

(1971). “In the absence of any apparent or declared reason–such as undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc.–the leave sought should, as the

rules require, be ‘freely given.’” Foman, supra, 371 U.S. at 182 (quoting Fed. R. Civ.

P. 15(a)).

3. Title VII and Equal Pay Act

Title VII “makes it unlawful for an employer . . . ‘to fail to hire or to discharge any

individual, or otherwise discriminate against any individual . . . because of such

individual’s race, color, religion, sex, or national origin,’” Abdallah v. Napolitano,

909 F. Supp.2d 196, 203 (W.D.N.Y. 2012) (Curtin, J.) (quoting 42 U.S.C. § 2000e-

2(a)(1)).

Plaintiff establishes discrimination either by direct evidence, Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d. 523 (1985); Teamsters v.

United States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), or by the

burden shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04,

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). For direct evidence of discrimination, Plaintiff must

meet her “initial burden of offering evidence adequate to create an inference that an

employment decision was based on a discriminatory criterion illegal under the Act,”

Teamsters, supra, 431 U.S. at 358.

Under McDonnell Douglas and Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), Plaintiff bears the burden

of demonstrating that sex was a motivating factor in her adverse employment action,

McDonnell Douglas, supra, 411 U.S. at 802-04; Burdine, supra, 450 U.S. at 252-56; see

also University of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 349, 133 S.Ct.

2517, 186 L.Ed.2d 503 (2013) (proof of religion as a motivating factor). She then must

prove that an inference of discrimination where direct evidence is lacking leading to an

application of the burden of proof shifting standard of McDonnell Douglas. Under that

standard, Plaintiff bears the burden of establishing a prima facie case of discrimination,

Burdine, supra, 450 U.S. at 252-54; McDonnell Douglas, supra, 411 U.S. at 802. She

must prove the prima facie case by a preponderance of the evidence, Burdine, supra,

450 U.S. at 252-53. “The burden of establishing a prima facie case of disparate treatment

is not onerous,” id. at 253, basically that Plaintiff applied for a position or is employed in

a job she was qualified for but was rejected or otherwise hindered under circumstances

that give rise to an inference of unlawful discrimination, id. The prima facie case creates

a presumption of unlawful discrimination by the Defendant employer, id.

If Plaintiff meets this initial burden, the burden shifts to Defendant to articulate

some legitimate, nondiscriminatory reason for its action, id. at 254-56. If that has been

met, the burden shifts back to Plaintiff to show, beyond the prima facie case, that

Defendant’s determination was the result of discrimination, id. at 256; see McDonnell

Douglas, supra, 411 U.S. at 804-05. “The ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the plaintiff remains at all times with

the plaintiff,” Burdine, supra, 450 U.S. at 253. As noted by the Burdine Court, the

McDonnell Douglas evidentiary burden shifting “serves to bring the litigants and the court

expeditiously and fairly to this ultimate question,” id., or as later held in the TWA case,

“that the ‘plaintiff [has] his [or her] day in court despite the unavailability of direct

evidence,’” TWA, supra, 469 U.S. at 121 (quoting Loeb v. Textron, Inc., 600 F.2d 1003,

1014 (1st Cir. 1979)) (alterations added).

a. Disparate Treatment

To allege a disparate treatment claim because of gender or religion, e.g., Feingold

v. New York, 366 F.3d 138, 149 (2d Cir. 2004); Abdallah, supra, 909 F. Supp. 2d at 203,

under either Title VII or the New York State Human Rights Law, Plaintiff again needs to

state a prima facie case. If this is done, the burden shifts to Defendant to show non-

discriminatory reason for the action. If Defendant presents a non-discriminatory reason,

the burden shifts back to Plaintiff to establish that Defendant’s reason was pretextual.

See, e.g., McDonnell Douglas, supra, 411 U.S. at 802-04.

The prima facie case here is that Plaintiff is a member of a protected class; she is

qualified for her position; she suffered from an adverse employment action; and the

circumstances give rise to an inference of discrimination, see Moll v. Telesector

Resources Group, Inc., 04CV805, 2012 U.S. Dist. LEXIS 74949, at *47-48 (W.D.N.Y.

May 30, 2012) (Skretny, C.J.), rev’d on other grounds, 760 F.3d 198 (2d Cir. 2014).

b. Equal Pay Act

For her proposed Equal Pay Act claim, 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.’ [Belfi v. Prendergast, 191 F.3d

129, 135 (2d Cir. 1999)] (internal quotation marks omitted),”

E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254-55 (2d Cir. 2014); Corning Glass

Works v. Brennan, 417 U.S. 188, 195-96, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (Docket

No. 13, Pl. Memo. at [page 6 of 8] 3); McCullough v. Xerox Corp., 224 F. Supp.3d 193,

196 (W.D.N.Y. 2016) (Larimer, J.). “‘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) (quoting [Tomka v. Seiler Corp., 66 F.3d 1295, 1310

(2d Cir. 1995)]),” Bass v. World Wrestling Fed’n Ent., Inc., 129 F. Supp.2d 491, 503

(E.D.N.Y. 2001).

Equal Pay claims are “analyzed under a burden-shifting framework that is similar

in some ways to that employed for claims under Title VII,” McCullough, supra, 224 F.

Supp.3d at 196. If Plaintiff makes out a prima facie case of pay disparity based on sex,

3This Court’s Local Civil Rule 10(a)(5) requires papers to have consecutively numbered pages.

the burden shifts to Defendant to show that the wage disparity was justified by ostensibly

neutral system (such as merit, seniority), Corning Glass Works, supra, 417 U.S. at 197;

see 29 U.S.C. § 206(d)(1). If Defendant makes this showing, the burden shifts back to

Plaintiff to show that this reason is pretextual. Corning Glass Works, supra, 417 U.S. at

197.

To survive a motion to dismiss, Plaintiff must allege plausibly facts that her

employer violated the Equal Pay Act, Frasier v. General Elec. Co., 930 F.2d 1004, 1007-

08 (2d Cir. 1991); Port Auth. of N.Y. and N.J., supra, 768 F.3d at 256 (Docket No. 15,

Def. Reply Memo. at 9-10).

4. Supplemental Jurisdiction and New York State Human Rights Law

New York State Human Rights Law also has the same burden of proof and burden

shifting from McDonnell Douglas stated above for Title VII claims (see Docket No. 13, Pl.

Memo. at [page 8 of 8]; cf. Docket No. 15, Def. Reply Memo. at 6, 9), Cruz v. Coach

Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000); Forrest v. Jewish Guild for the Blind,

3 N.Y.3d 295, 310, 786 N.Y.S.2d 382, 394 (2004).

Subject matter jurisdiction may be raised by the parties or by this Court sua sponte,

Lyndonville Sav. Bank & Trust v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000);

LaChapelle v. Torres, 37 F. Supp. 3d 672, 680 (S.D.N.Y. 2014). Plaintiff’s New York

State Human Rights Law claims share the same nucleus of operative facts for her Title VII

and § 1981 claims that this Court can exercise supplemental jurisdiction under 28 U.S.C.

§ 1367 over Plaintiff’s state law claims, see Klein v. London Star Ltd., 26 F. Supp. 2d 689,

692 (S.D.N.Y. 1998).

5. Timeliness of These Claims

These Title VII and related discrimination claims need to be alleged on time to be

actionable. Plaintiff must file charges with the state equal employment agency within

300 days of the alleged discriminatory acts, 42 U.S.C. § 2000e-5(e)(1); Flaherty v.

Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000).

The Equal Pay Act has a two-year statute of limitations, 29 U.S.C. § 255(a)

(Docket No. 13, Pl. Memo. at [pages 5 of 8 & n.2, 8 of 8]), with a possible three-year

period for willful conduct, id. (Docket No. 13, Pl. Memo. at [page 5 of 8 & n.2]), without

an EEOC charge requirement, see Washington County v. Gunther, 452 U.S. 161, 176

n.14, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Plaintiff contends that the Equal Pay Act

claims accrue with each paycheck (Docket No. 13, Pl. Memo. at [page 4 of 8 & n. 1]),

see Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 125 Stat. 5, codified at

42 U.S.C. § 2000e-5(3)(A), overruling Ledbetter v. Goodyear Tire & Rubber, 550 U.S.

618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007).

New York State Human Rights Law claims also do not have an administrative

charge requirement and has a statute of limitations under the CPLR of 3 years, N.Y. Civ.

P. L. R. 214.

B. Parties’ Contentions

Defendant contends that Plaintiff’s claims are time barred (Docket No. 11, Def.

Memo. at 8-10). Defendant claims that Plaintiff failed to file her EEOC claim within 300

days of the alleged wrongful employment practice (id. at 8). Plaintiff filed her EEOC

charge on February 19, 2019 (id. at 9; Docket No. 11, Def. Atty. Affirm. ¶¶ 2, 4, Ex. A).

This Charge, like the Complaint did not allege any dates (Docket No. 11, Def. Memo. at

9).

From Defendant’s moving papers, Plaintiff was appointed Interim Dean of

Defendant’s School of Journalism and Mass Communication on September 1, 2011, and

appointed Dean on June 1, 2012 (id. at 9-10; Docket No. 11, Seastedt Aff. ¶¶ 3, 4, Exs. A,

B). The position of Provost that Plaintiff unsuccessfully applied for was filled on

January 28, 2016, and Plaintiff resigned as Dean on June 1, 2017 (effective on

January 12, 2018) (Docket No. 11, Def. Memo. at 9, 10; Docket No. 11, Zimmer Aff. ¶¶ 3,

4, Ex. C; id., Seastedt Aff. ¶ 7, Ex. E). Defendant concludes that these dates are well

before the 300 days from Plaintiff’s February 19, 2019, EEOC Charge (Docket No. 11,

Def. Memo. at 9).

Defendant next contends that the Complaint fails to state a claim for retaliation (id.

at 10-13). Plaintiff’s proposed amendment addresses this by dropping her retaliation

claims (Docket No. 13).

Finally, Defendant urges this Court to not exercise supplemental jurisdiction over

Plaintiff’s New York State Human Rights Law claim (Docket No. 11, Def. Memo. at 13-

14).

In addition to seeking leave to amend her Complaint (discussed below), Plaintiff

responds that Defendant’s statute of limitations argument is in error, claiming that a pay

disparity claim (as expressly alleged in the Amended Complaint) is timely with each

paycheck issued (Docket No 13, Pl. Memo. at [page 4 of 8 to 5 of 8]), Lily Ledbetter Fair

Pay Act, Pub. L. No. 110-2, 125 Stat. 5, codified at 42 U.S.C. § 2000e-5(3)(A). The Equal

Pay Act claim has a two-year limitations period (or three years for willful violations)

running from each paycheck that was not equal (id.), 29 U.S.C. § 255(a). This statute of

limitations argument is an affirmative defense for Defendant to prove (id. at [page 4 of 8]).

Plaintiff contends next that she plausibly alleges discrimination claims based upon

her religious faith (Wiccan) and her gender, claiming that non-Wiccan and male

colleagues were paid more than she was for equivalent work (id. at [page 5 of 8 to 7 of

8]). She claims that her NYSHRL claims are identical to her federal antidiscrimination

law claims and therefore this Court should exercise jurisdiction over her NYSHRL claims

(id. at [page 8 of 8]).

Defendant responds that the amendment is futile because it still fails to state a

cause of action, thus leave should be denied (Docket No. 15, Def. Reply Memo. at 9, 6-

12). Plaintiff has not refuted that her Title VII claim was time barred (id. at 1-2, 4-6). Since

Plaintiff fails to state a Title VII claim, Defendant concludes that this Court should not

exercise supplemental jurisdiction over her identical New York State Human Rights Law

claim (id. at 2, 6). Defendant characterize Plaintiff’s proffered new Equal Pay Act claim

as “broad, bare, and conclusory assertion” and insufficient to state an Equal Pay Act claim

(id. at 3). Plaintiff’s Equal Pay Act claim only addresses discrimination based upon gender

and not religion (id. at 10), 29 U.S.C. § 206(d). Plaintiff also failed to allege the skills,

effort and responsibility for her former position as Dean and the alleged comparable

deanships held by male faculty members (id. at 11).

This Court notes that the Amended Complaint refers to the EEOC Charge and

Right to Sue Letter (Docket No. 13, Ex., [proposed] Am. Compl. ¶¶ 6, 7) but does not

include these documents as part of the amended pleading. The Amended Complaint also

does not allege when she resigned as Dean, hence her last pay date for that office, for

this Court to determine if her now Equal Pay Act claim is timely.

C. Plaintiff’s Motion for Leave to Amend (Docket No. 13)

This Court will first address Plaintiff’s motion for leave to amend the Complaint and

then address Defendant’s motion to dismiss (either the Amended Complaint or the

original pleading). Resolution of Plaintiff’s motion for leave will affect resolution of

Defendant’s motion to dismiss, Prutsman v. Addison Cent. Sch. Bd., No. 16CV6080,

2018 U.S. Dist. LEXIS 23413, at *6 n.4 (W.D.N.Y. Feb. 13, 2018) (Larimer, J.); if granted,

Plaintiff’s Amended Complaint becomes the operative pleading, id.

Plaintiff proposes to amend eliminating the Third Cause of Action and expressly

alleges an Equal Pay Act claim (Docket No. 13, Ex., [proposed] Am. Compl. ¶ [new] 19).

The original Complaint refers to her reduction in pay after her forced resignation as Dean

(Docket No. 1, Compl. ¶ 17), her promotion to Provost would have increased her pay (id.

¶ 19) and alleges upon information and belief that other deans (all male) were paid more

than Plaintiff (id. ¶¶ 29, 30). The allegations in the First and Second Causes of Action

remain the same in the proposed Amended Complaint, thus, there is little change from

the original pleading.

Leave to file the proposed Amended Complaint here is not futile. The only

substantive changes proposed are elimination of the retaliation Third Cause of Action,

one of the arguments in Defendant’s Motion to Dismiss (see Docket No. 11, Def. Memo.

at 10-13) and express Equal Pay Act claim. Defendant is not prejudiced by this proposed

amendment. Plaintiff’s motion (Docket No. 13) for leave to amend the Complaint is

granted, see Korthas v. Northeast Foods, Inc., No. 5:03-CV-552(HGM/DEP), 2006 U.S.

Dist. LEXIS 18846, at *7 (N.D.N.Y. Feb. 27, 2006).

The Amended Complaint repeats the original allegations but dropped the Third

Cause of Action for retaliation and amplify her Equal Pay Act claim. Rather than consider

the futility of renewed contentions from the original Complaint in its amendment, this Court

will address the merits of her amended pleading in Defendant’s motion to dismiss. Thus,

for judicial efficiency, this Court will consider the Amended Complaint as the pleading now

addressed by Defendant’s Motion to Dismiss.

D. Defendant’s Motion to Dismiss (Docket No. 11)

1. Timeliness of Plaintiff’s Claims

Plaintiff’s Title VII claim for sex and religious discrimination alleged in her First

Cause of Action is time barred. Plaintiff talks about several discriminatory incidents (being

compelled to sign a commitment to Catholic values, resigning as Dean and not appointed

as Provost) without affixing dates for them. Defendant submits a chronology of these

events and supporting documents. Plaintiff had the opportunity to object (in resisting

Defendant’s motion, submitting her version of the timeline, calling for conversion of the

motion to dismiss into one for summary judgment, or in amending the Complaint) but did

not do so. This Court accepts the chronology proffered by Defendant and unopposed by

Plaintiff.

According to Defendant’s chronology, on May 7, 2012, Plaintiff was required to

sign a statement that affirmed Catholic values although her superiors knew she was

Wiccan. Plaintiff resigned as Dean June 1, 2017, effective January 12, 2018. Plaintiff

also applied to become Provost, but another person was appointed on January 28, 2018.

She filed her EEOC charge on February 19, 2019, far more than 300 days after the above

incident. Plaintiff has not plausibly alleged (in the original or amended pleading) that her

Title VII claim is timely. Thus, so much of her First Cause of Action alleging Title VII

violation for gender and religious discrimination is dismissed and Defendant’s motion to

dismiss is granted.

2. Equal Pay Act Claim

As amended, Plaintiff fails to allege an Equal Pay Act claim. As Defendant notes

(Docket No. 15, Def. Reply Memo. at 10), the Equal Pay Act only addresses gender

discrimination in pay, 29 U.S.C. § 206(d) (prohibition of sex discrimination), and not any

discrimination due to religion.

She makes a bare bones allegation that she was paid less than other (male) deans

at St. Bonaventure University due to her sex. Plaintiff generally alleges Defendant paid

different wages to employees of different sexes (Docket No. 13, Ex., [proposed] Am.

Compl. [new] ¶¶ 19, 29-30). While she argues in these motions that another faculty

member and former dean retained the higher pay when he ceased to be a dean (cf.

Docket No. 13, Pl. Memo. at [page 4 of 8]), Plaintiff did not allege this in the Amended

Complaint (see Docket No. 15, Def. Memo. at 7-8).

Plaintiff, however, fails to allege the second element of the Equal Pay Act that the

employees perform equal work on jobs of equal skill, effort, and responsibility or the third

element that the jobs were performed under similar working conditions. As narrowed,

Plaintiff makes no allegation of skills and responsibilities she had as Dean of the Russell

J. Jandoli School of Journalism and Mass Communication and those of the purported

comparable male deans of other schools at St. Bonaventure. This fails plausibly to plead

an Equal Pay Act claim, see Rose v. Goldman, Sachs & Co., 163 F. Supp.2d 238, 243-

44 (S.D.N.Y. 2001); Bass, supra, 129 F. Supp.2d at 503 (“vague, conclusory, and

speculative allegations will not save an Equal Pay Act Claim. A plaintiff must allege at

least some facts to support contentions that her employer violated the [Equal Pay Act]”).

Plaintiff here failed to “elaborate facts supporting her ‘information and belief’ or even

giving rise to a reasonable inference to support her claim,” Bass, supra, 129 F. Supp. 2d

at 503. Instead, Plaintiff merely alleges (on information and belief) that she is underpaid

as compared with male deans at St. Bonaventure without stating what her skills, efforts,

and responsibility as Dean were as compared with those of the male deans (see Docket

No. 15, Def. Reply Memo. at 11). This is insufficient to allege either the second or third

elements for an Equal Pay Act claim.

Plaintiff also fails to allege when she was last paid to start the accrual of that claim.

While she alleges at least a two-year4 statute of limitation period that accrues from each

paycheck that is less than similar male faculty and administrative staff, Plaintiff’s failure

to present a chronology deprives the record of when she was underpaid.

Therefore, the remainder of Plaintiff’s First Cause of Action, as amended, alleging

an Equal Pay Act claim is dismissed and Defendant’s motion to dismiss is granted.

3. Supplemental Jurisdiction

As Plaintiff asserts (Docket No. 13, at [page 8 of 8]), her federal and state

antidiscrimination claims are identical and are governed by identical analysis (see also

Docket No. 13, Ex., [proposed] Am. Compl. ¶ [new] 40; Docket No. 1, Compl. ¶ 41). Under

New York law, the Human Rights Law has a three-year statute of limitations. Plaintiff filed

4The Amended Complaint does not allege willful conduct to warrant the three-year period.

this action on May 28, 2019 (Docket No. 1); her claims would be timely for incidents from

May 28, 2016, forward. Plaintiff’s Catholic values declaration is time barred under New

York law as well as under Title VII. Her claims regarding her resignation as dean (in

June 2017) and denial of appointment as Provost (in January 2018) are timely.

If this Court has jurisdiction over her Title VII and Equal Pay Act claims, this Court

may also exercise supplemental jurisdiction over her identical New York State Human

Rights Law claims asserted in her Second Cause of Action.

Absent a federal cause of action for original jurisdiction (as held above regarding

the Title VII and Equal Pay Act claims), this Court will not exercise its supplemental

jurisdiction to consider Plaintiff’s claims arising from her resignation as Dean and not

being appointed Provost under the New York Human Rights Law. Plaintiff fails to allege

facts that show sex or religious discrimination in the two contested personnel decisions.

She claims that she was forced to resign as Dean, alleging that Defendant’s board asked

her to resign for unspecified reasons (Docket No. 13, Ex., [proposed] Am. Compl.

¶¶ [new] 15, 20-22, 37). She claims that the new Provost, Joseph Zimmer, was told to

“solve the Pauline problem” (id. ¶ [new] 38), but (according to the chronology of events),

Plaintiff resigned as Dean before Zimmer was appointed Provost and Plaintiff does not

explain how Zimmer was to “solve the Pauline problem” or what the problem was (or

implied to be). Rather than delve further into the pleading for the Second Cause of Action,

this Court declines to exercise supplemental jurisdiction. As a result of the discussion

above, Plaintiff’s Second Cause of Action (Docket No. 13, Ex.) under the New York State

Human Rights Law is also dismissed.

IV. Conclusion

Plaintiff’s motion for leave to amend the Complaint (Docket No. 13) is granted. The

Amended Complaint removes Plaintiff’s retaliation claims. Even as amended, however,

the Complaint fails to state a timely or meritorious cause of action. Her Title VII religion

and sex discrimination claim is time barred for her cited incidents. While now cast as an

Equal Pay claim, Plaintiff fails to allege when she was last paid to start the accrual of that

claim. She also fails to allege her duties and responsibilities and those of the alleged

comparable male deans or the salaries to allege pay discrepancy. Defendant’s motion to

dismiss (using the Amended Complaint as the operative pleading, see Docket No. 13,

Ex.) is granted.

V. Orders

IT HEREBY IS ORDERED, that Plaintiff’s Motion for Leave to Amend the

Complaint (Docket No. 13) is GRANTED. Using the Amended Complaint as the operative

pleading, Defendant’s Motion to Dismiss (Docket No. 11) that pleading is GRANTED.

FURTHER, the Clerk of Court is DIRECTED to close this case.

SO ORDERED.

Dated: January 5, 2021

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge