TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................... ii

INTRODUCTION........................................................................................... 1

ARGUMENT................................................................................................... 4

A. The law does not require the level of specificity Port Authority argues is necessary and the EEOC’s allegations were sufficient to survive a motion to dismiss.

................................................................................................................ 5

B. The pleadings contain inarguably specific factual allegations showing that the Port Authority viewed the attorney jobs as fungible, and thus presumptively entitled to equal pay, and the district court erred by failing to accept those allegations as true.

............................................................................................................. 14

CONCLUSION............................................................................................. 19

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES

Anderson News, LLC v. Am. Media, Inc., 680 F.3d 162 (2d Cir. 2012). 18

Arafat v. Sch. Bd. of Broward Cnty., No. 13-10726, 2013 WL 6244735 (11th Cir. Dec. 4, 2013)...................................................................................... 8

Arista Records LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010)..................... 5

Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................... 3, 4,

Baumgardner v. ROA General, Inc., 864 F. Supp. 1107 (D. Utah 1994) 9

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).................. 3, 4, 5, 6

Brennan v. Owensboro-Daviess Cnty. Hosp., 523 F.2d 1013 (6th Cir. 1975) 16

Burger v. N.Y. Inst. of Tech., 94 F.3d 830 (2d Cir. 1996)...................... 17

Chase Grp. Alliance LLC v. City of N.Y. Dep’t of Fin., 620 F.3d 146 (2d Cir. 2010)......................................................................................................... 14

Coward v. ADT Sec. Sys., Inc., 140 F.3d 271 (D.C. Cir. 1998).............. 16

Dubowski v. Stern, Lavinthal, Norgaard & Daly, 922 F. Supp. 985 (D.N.J. 1996)......................................................................................................... 13

Ebbert v. Nassau Cnty., No. 05-CV-5445, 2009 WL 935812 (E.D.N.Y. Mar. 31, 2009)................................................................................................ 12

EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1998).............. 16

Gibson v. Jacob K. Javits Convention Ctr., No. 95 Civ. 9728, 1998 WL 132796 (S.D.N.Y. March 23, 1998)................................................................ 9

Isaacowitz v. Dialysis Clinic, No. CIV-09-638, 2010 WL 8913513 (D.N.M. Feb. 22, 2010)............................................................................................ 9

Kassman v. KPMG, 925 F. Supp. 2d 453 (S.D.N.Y. 2013)..................... 7

Kozlowski v. Fry, 238 F. Supp. 2d 996 (N.D. Ill. 2002)......................... 13

Lacey v. Carroll McEntee & McGinley, Inc., No. 3 CIV. 8832, 1994 WL 592158 (S.D.N.Y. Oct. 26, 1994).................................................................... 8

Lavin-McEleney v. Marist College, 239 F.3d 476 (2d Cir. 2001)........... 12

Mulhall v. Advance Sec., Inc., 19 F.3d 586 (11th Cir. 1994)................. 16

Noel-Batiste v. Virginia State Univ., No. 12-cv-0826, 2013 WL 499342 (E.D. Va. Feb. 7, 2013)...................................................................................... 9

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1 (1st Cir. 2011).......... 18

Rizzo v. Kraus Org., No. 10-CV-272, 2010 WL 2427434 (E.D.N.Y. May 25, 2010).............................................................................................. 6, 7

Suzuki v. State Univ. of N.Y. College, No. 08-CV-4569, 2013 WL 2898135 (E.D.N.Y. June 13, 2013)................................................................... 9

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)................................ 6

Unger v. City of Mentor, 387 Fed. Appx. 589 (6th Cir. 2010)................. 8

Volpe v. Nassau Cty., 915 F. Supp. 2d 284 (E.D.N.Y. 2013).................. 8

STATUTES AND RULES

Equal Pay Act, 29 U.S.C. § 206(d)......................................................... 1

Fed. R. Civ. P. 12(c)................................................................................ 5

introduction

In this pay discrimination action seeking relief for a group of fourteen female nonsupervisory attorneys at the Port Authority, the Commission alleges that male attorneys are paid more than female attorneys with similar experience and seniority in violation of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). Although the district court determined that the EEOC alleged sufficient facts to show that it was plausible that female and male nonsupervisory attorneys had substantially similar “responsibility,” the district court dismissed the EEOC’s EPA claim after finding that it was not plausible that the jobs performed by the claimant attorneys and their male comparators required equal “effort” and “skill.”

In its opening brief, the Commission argued that these holdings were erroneous because the allegations in the pleadings state a plausible claim under the EPA. The Commission emphasized that the Complaint gives the Port Authority fair notice of the claim and the ground on which it rests, identifies the time period of discrimination, the employees and jobs at issue, and the nature of the discrimination. Additionally, the Commission demonstrated that the Objections and Responses to Defendant’s Contention Interrogatories (“Responses”), which the court treated as an amendment to the Complaint, identify male comparators for each female complainant and provide detailed factual assertions explaining how the jobs are substantially equivalent in terms of skill, effort, and responsibility. In particular, the Responses state that the Port Authority’s nonsupervisory attorneys all have the same job title of “attorney” and the same job code, and move among the agency’s substantive legal divisions. All attorneys’ salaries are set via the Port Authority’s “maturity curve” using years of experience without reference to the substantive legal division to which the attorney is assigned. The EEOC’s Responses state that there are no job descriptions identifying different duties for different legal divisions or specialties, and that all nonsupervisory attorneys are evaluated under the same criteria, such as project management, decision-making, and interpersonal skills.

The Commission demonstrated that its pleadings offered facts showing that the Port Authority’s nonsupervisory attorney jobs require the same professional degree and admission to the bar, and explained the skills and duties that all nonsupervisory Port Authority attorney jobs entail regardless of the substantive practice area. These include problem-solving and analytical skills to identify, research, analyze, evaluate, and resolve legal issues; use of professional judgment and legal skills to draft, review, and create legal documents; the ability to understand and comply with department, agency, and legal instructions and procedures; the provision of legal advice to a single client; the ability to work with outside legal staff or other Port Authority attorneys; the same degree of diligence and persistence; and the ability to manage time, meet deadlines, and prioritize assignments. The EEOC’s Responses further state that the attorney jobs are performed under the same time-pressure and deadlines and require the same effort to perform the above duties.

The Commission argued that these factual assertions not only allege a plausible case under the EPA, but establish a prima facie case, and thus go well beyond the pleading requirements established by the Supreme Court and this Court. The Commission emphasized that the district court’s dismissal stemmed from its subjective belief that the EPA claim lacks merit and should not go forward, not from any limitations in the EEOC’s Complaint and Responses.

In response, the Port Authority ignores the detailed factual allegations the Commission presented and distorts the EEOC’s position. The Port Authority repeatedly faults the Commission, as did the district court, for what it perceives as the EEOC’s failure to provide a detailed comparison of the precise job duties of the nonsupervisory attorney jobs at issue, despite the fact that discovery has yet to occur and this is an appeal from a motion to dismiss. The specificity the court found lacking is not required by Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), or this Court’s precedents to survive a motion to dismiss. Rather than address the detailed factual allegations highlighted in the Commission’s opening brief, the Port Authority maintains that the EEOC only speculates and presumes that the Port Authority’s nonsupervisory attorney jobs are substantially similar within the meaning of the EPA.

The Port Authority also asserts, despite the Commission’s focus on the duties of the Port Authority attorneys, that the Commission’s position in this case is that all lawyers are the same, not just the nonsupervisory attorneys at the Port Authority, and that such a theory can never meet the EPA’s equal work requirement. The Commission submits this reply to refocus the Court’s attention on the relevant legal standards, the detailed allegations in the EEOC’s Complaint and Responses, and the arguments actually advanced by the EEOC to support its position that the pleadings state a claim for relief that is plausible. Under the Supreme Court’s and this Court’s pleading requirements, the Commission’s factual allegations are sufficient to withstand dismissal. The Port Authority’s contrary argument is without legal supported and is an effort to deflect attention from the detailed facts indicating that male and female nonsupervisory lawyers perform work sufficiently similar to require equal pay.

argument

An adequate complaint must only provide fair notice to the defendant and state a facially plausible legal claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.”) (internal citations omitted). As this Court has explained, “although Twombly and Iqbal require ‘factual amplification where needed to render a claim plausible,’ we reject [the defendant’s] contention that Twombly and Iqbal require the pleading of specific evidence or extra facts beyond what is needed to make the claim plausible.” Arista Records LLC v. Doe 3, 604 F.3d 110, 120-121 (2d Cir. 2010) (internal citations omitted).

A. The law does not require the level of specificity that Port Authority argues is necessary, and the EEOC’s allegations were sufficient to survive a motion to dismiss.

The Port Authority repeatedly insists that the district court correctly ruled that the EEOC’s Complaint and Responses are insufficient because, in its view, the Commission did not compare “actual job duties” performed by the claimants and their male comparators. See Def. Br. at 15, 16, 23, 27, 28, 29, 32, and 33. According to the Port Authority, “anything less than concrete proof, i.e., a detailed factor-by-factor comparison of job duties, to show that the jobs at issue are in fact actually equal” will not suffice. Id. at 16. But the Commission was not required to offer a detailed comparison of job duties or “concrete proof” in its complaint to survive a motion to dismiss, and the Port Authority cites no legal authority to support its version of the pleading requirements. It is settled that a complaint challenged under Rule 12(c) “does not need detailed factual allegations.” Twombly, 550 U.S. at 555. Although the Port Authority cites to Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995), in making its argument that the Commission’s facts are insufficient (Def. Br. at 27), Tomka contains no mention of “a detailed comparison of job duties,” nor does the regulation cited. Moreover, Tomka was not decided on a motion to dismiss, but instead was a reversal of summary judgment. 66 F.3d at 1312.

Factual allegations in a complaint need not contain the level of specificity required by the district court, and the Port Authority offers no legal support for its heightened pleading requirement. See Twombly, 550 U.S. at 550-51 & 569 n.14 (accepting allegations that defendants “engaged in parallel conduct” and failed to “meaningfully . . . pursue attractive business opportunities” and explaining that, “our concern is not that the allegations in the complaint were insufficiently ‘particularized’; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs’ entitlement to relief plausible”). Courts have allowed EPA cases to go forward with far less detail than in the Commission’s Complaint and 47-page Responses. In Rizzo v. Kraus Organization, the court held that the plaintiff’s allegations were sufficient to defeat the defendant’s motion to dismiss where the female attorney plaintiff’s comparator was a male paralegal. No. 10-CV-272, 2010 WL 2427434, at *2 (E.D.N.Y. May 25, 2010). The court determined that because the complaint stated that the male comparator’s duties were similar to the plaintiff’s, and alleged that both the plaintiff and male comparator performed legal research and advocated for the defendants before adjudicative bodies, “[t]hese assertions satisfy plaintiff’s minimal burden to allege substantial similarity.” Id. at *3.

In Kassman v. KPMG, 925 F. Supp. 2d 453, 471 (S.D.N.Y. 2013), the district court rejected the defendant’s motion to dismiss two female managers’ pay claims. The court noted that the Second Circuit has yet to hold that a plaintiff must identify a specific male comparator in her complaint. Id. One plaintiff alleged that her salary was cut by $20,000 while male counterparts’ salaries were not cut, and she named one male employee who “worked on engagements for similar clients” and “performed the same tasks” as the plaintiff “with no greater skill or effort.” Id. A second plaintiff alleged that her pay had been frozen while similarly situated men did not suffer a pay freeze, and a specific male comparator “whose qualifications, experience and responsibilities were no greater than [the plaintiff’s] continued to receive pay raises.” Id. In the court’s view, these allegations, which are less specific than in this case, “plainly name specific comparators and thus are sufficient to state a claim even under the higher standard urged by Defendants.” Id.

In Volpe v. Nassau County, male police communication operators and supervisors brought a wage discrimination class action under the EPA, claiming that the county paid them lower wages than those paid to women performing substantially similar work. 915 F. Supp.2d 284, 288 (E.D.N.Y. 2013). The court held that the defendants could not “credibly contend that plaintiffs have failed to properly allege” that male and female employees perform the same jobs under similar working conditions where the plaintiffs stated in their complaint that they “held the same title, worked under the same conditions, and had the same responsibilities as their female counterparts.” Id. at 294.

In the cases the Port Authority cites to show that courts have dismissed EPA cases pre-discovery where the “claims lack the requisite factual support,” (Def. Br. at 20-21), none of the pleadings described are comparable to the EEOC’s Complaint and Responses. The plaintiffs in Unger, Arafat, and Lacey allege only legal elements without supporting facts. Unger v. City of Mentor, 387 Fed. Appx. 589, 595 (6th Cir. 2010); Arafat v. School Bd. of Broward Cty., No. 13-10726, 2013 WL 6244735, at *3 (11th Cir. Dec. 4, 2013); Lacey v. Carroll McEntee & McGinley, Inc., No. 3 CIV. 8832, 1994 WL 592158, at *1 (S.D.N.Y. Oct. 26, 1994). The plaintiff in Suzuki alleged only that the defendant discriminated against her by “paying her and other female professors less wages than they paid to male employees although she performed equal, or superior, work and had equal or better qualifications and experience,” despite having obtained substantial discovery by the time of her amended complaint and thus having “had far more information than the typical plaintiff filing an amended complaint.” Suzuki v. State Univ. of N.Y. College, No. 08-CV-4569, 2013 WL 2898135, at *4 (E.D.N.Y. June 13, 2013). Similarly, the plaintiff in Noel-Batiste v. Virginia State University alleged only that there were “‘faculty professors’ at VSU who receive a higher salary than Plaintiff and that some of those professors are male.” No. 12cv00826, 2013 WL 499342, at *6 (E.D. Va. Feb. 7, 2013). The jobs compared in Isaacowitz v. Dialysis Clinic were overtly dissimilar where a male technician compared his job to a female charge nurse who directed his work and did not “work the floor” of the clinic as he did. No. CIV-09-638, 2010 WL 8913513, at *14 (D.N.M. Feb. 22, 2010). One of the plaintiffs in Gibson v. Jacob K. Javits Convention Center was a sales representative who compared her salary to a male human resources director who allegedly asked others how to perform his duties yet was paid twice her salary; her allegations amounted to a claim that she was overqualified and underpaid for her job and her male comparator was underqualified and overpaid. See No. 95 Civ. 9728, 1998 WL 132796, at *3 (S.D.N.Y. Mar. 23, 1998). And in Baumgardner v. ROA General, the plaintiffs “distinguished their responsibilities from those of [their male comparator]” rather than allege how their duties were substantially equal. 864 F. Supp. 1107, 1109 (D. Utah 1994). These cases bear no resemblance to the comprehensive substantive factual allegations in the Commission’s Responses.

As emphasized in the Commission’s opening brief, the EEOC’s Responses offer sufficient facts about the common duties of the Port Authority’s nonsupervisory attorneys to state a plausible claim that the attorney jobs require substantially similar skill, effort, and responsibility. These jobs require problem-solving; identifying, researching, analyzing, evaluating, and resolving legal issues; drafting, reviewing, and creating legal documents; understanding and complying with department and agency legal instructions and procedures; interacting with and consulting with outside legal staff; managing time, meeting deadlines, and prioritizing assignments; and providing legal advice to one client, the Port Authority. See EEOC Br. at 6 (citing Responses). The Commission also alleged that the nonsupervisory attorney jobs at the Port Authority all require the same physical and mental exertion to accomplish those duties. See EEOC Br. at 7.

As discussed, the Port Authority does not point to any authority suggesting the Commission’s allegations are insufficient, but it argues that attorneys who work in other settings also perform the tasks the Commission identified. See Def. Br. at 24-25. The Port Authority does not explain why the fact that lawyers outside of the Port Authority might perform similar tasks would negate the allegation that the attorney positions at the agency are substantially similar. Nor does its point about common tasks of all lawyers respond to the Commission’s argument that the Complaint and Responses contain facts suggesting that the Port Authority pays all its nonsupervisory lawyers without regard to practice area, and thus necessarily views them as having common duties regardless of the department in which they work. See EEOC Br. at 6. That is, for pay purposes, at the Port Authority, “a lawyer is a lawyer is a lawyer,” irrespective of whether the attorney litigates or does transactional work, or practices environmental law or labor law.

In a similar vein, the Port Authority warns that the EEOC’s “presumption that every attorney performs work of equal skill, effort and responsibility fails to meet the plausibility test” because “to hold otherwise would mean that the EEOC could bring an EPA class action against a law firm based upon nothing more than a salary difference between some of the men and women holding the job title ‘associate’ and performing the general duties of a lawyer.” See Def. Br. at 26-27. But the Commission’s Complaint and Responses describe the nonsupervisory attorney universe at the Port Authority. And the Commission’s factual contention in this case that the Port Authority views its attorneys as fungible is not a presumption about Port Authority attorneys, and it certainly does not constitute a presumption of any sort about attorneys in general or attorneys employed in other settings.

Although the Port Authority repeatedly faults the Commission for not providing detailed comparisons of specific job duties, the Commission’s Responses note that there are no Port Authority job descriptions identifying different duties for the attorney jobs at issue. See A-62. The Port Authority does not offer any more specific job duties that might vary by legal specialty in its brief, but argues the Commission assumes or presumes, without factual substantiation, that the jobs are the same. To the contrary, it is the Port Authority that is offering an unsupported assumption that the jobs are different. Because the Port Authority contends that the attorney jobs in the various sections and departments are different, the agency may attempt to differentiate the job duties of attorneys in different departments during discovery. The offering of more detailed evidence of more particularized and specific job duties to flesh out similarities or differences can only occur following the development of the factual record in discovery.

The cases that the Commission cited in its opening brief for the proposition that jobs in different legal departments can be substantially similar, which the Port Authority argues involve “detailed comparisons of actual job duties” (unlike its perception of the Commission’s Complaint and Responses), were not decided on a motion to dismiss. See Def. Br. at 28-29. Instead, the “substantial evidence” of equality of skill, effort, and responsibility between the jobs compared in Lavin-McEleney v. Marist College, 239 F.3d 476, 481 (2d Cir. 2001), was offered at trial, after the facts had been developed through discovery. And in the other cases, the courts denied summary judgment following discovery. See Ebbert v. Nassau Cnty., No. 05-CV-5445, 2009 WL 935812, at *3-4 (E.D.N.Y. Mar. 31, 2009); Kozlowski v. Fry, 238 F. Supp. 2d 996, 1018-21 (N.D. Ill. 2002); Dubowski v. Stern, Lavinthal, Norgaard & Daly, 922 F. Supp. 985, 991-92 (D.N.J. 1996). In short, none of the cases the Commission cited to suggest that legal jobs in different departments can be similar for EPA purposes involved rejections of the factual allegations stated in a complaint.

Furthermore, the Commission’s pleadings offered comparisons of the pay of male and female attorneys in the same legal department, so the putative differences in duties of attorneys in different departments would not be sufficient to undermine the EEOC’s factual claims of gender-based pay disparities. Neither the district court nor the Port Authority acknowledges the comparator charts in the Commission’s Responses that list multiple male comparators for each complainant. Where the complainants and comparators work in the same legal specialty and have comparable experience and seniority, as was the case for twelve of the women (EEOC Br. at 8-9), it is not only plausible but obvious that those jobs entail the same skills, effort, and responsibility. Additionally, the Commission listed male comparators with less seniority and experience that were paid more than Dolores Ward, Leslie Lyken, and Joan Bennet. These comparators worked in the same practice area if not the identical division (Business Transactions or Employment Relations). See EEOC Br. at 10. The Port Authority ignores these allegations, and offers no explanation for why they do not state a plausible pay discrimination claim.

In addition to the facts showing the skill, effort, and responsibility required by all nonsupervisory attorneys, the Commission alleged several facts showing that the Port Authority viewed all the attorneys as performing work sufficiently similar to warrant equal pay. The Port Authority maintains that these allegations of job similarity are “threadbare” and based only upon a presumption of similarity, without any facts to substantiate the plausibility of those allegations. See Def. Br. at 26. To the contrary, the Commission alleged in its Complaint and Responses that attorneys have moved between divisions, that the nonsupervisory attorney jobs have the same title and job code, and that attorneys are evaluated using the same criteria and are paid according to a “maturity curve” for setting salaries that does not value certain divisions more than others, at least for pay purposes. See EEOC Br. at 4-7. These allegations are not “threadbare”—they show that the Port Authority considers these jobs fungible, which makes it more plausible that they are substantially similar for EPA purposes. See EEOC Br. at 27-28.

In responding to these allegations, the Port Authority faults the Commission for its failure to demonstrate or establish its allegations, as did the district court. For example, the Port Authority argues that the Commission’s allegations that its nonsupervisory attorneys regularly move from one department to another and that some legal departments have been consolidated are of no consequence, and “do[] not demonstrate that all attorney positions in the law department are fungible.” See Def. Br. at 31. As noted in the Commission’s opening brief, the district court also complained that the EEOC’s allegations regarding these lateral moves among legal divisions do not “demonstrate that, at Port Authority, any given attorney does the same work as all other attorneys.” A-112. At this early pleading stage, the EEOC’s burden is not to demonstrate that the positions are interchangeable. See Chase Grp. Alliance LLC v. City of New York Dep’t. of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (complaint properly dismissed only if the plaintiff fails to provide factual allegations sufficient to raise a right to relief above the speculative level). However, that attorneys move from one substantive legal area to another and that legal departments have been combined make it at least plausible that all the nonsupervisory attorney jobs share the same skill, effort, and responsibility and are substantially equivalent under the EPA. Consequently, it was error under Twombly to dismiss the case on the pleadings.

The Port Authority also argues that the EEOC’s only allegation of equal work is that the attorneys compared have the same title of “attorney.” See Def. Br. at 17 (EEOC “seeks to . . . declare a violation of the EPA based solely upon a wage differential between men and women who hold the same position title.”). That the nonsupervisory attorney jobs being compared all have the same title of “attorney” (and identical job code) is one of many facts the Commission offered to allege a plausible EPA claim regarding jobs that are substantially similar. See EEOC Br. at 4-10, 21-24.

The Port Authority also argues that job codes and titles are “not relevant in determining whether jobs are substantially equal” so the district court properly discounted these allegations. See Def. Br. at 30. The Port Authority’s assertion is neither an accurate statement of the law nor is it supported by the cases cited. While the critical focus is concerned with job content, job titles are still relevant and one factor to be considered. See, e.g., Coward v. ADT Sec. Sys., Inc., 140 F.3d 271, 275 (D.C. Cir. 1998) (job titles helpful but not controlling); EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 346 (7th Cir. 1998) (“We recognize that language in the cases cited suggests that job titles and descriptions are probative and even may, in some instances, be highly probative of equal work because one would expect that actual responsibilities would, to some extent, conform to a job description.”) (internal citation omitted); Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir. 1994) (“Job titles are a factor for consideration, but are not dispositive.”); Brennan v. Owensboro-Daviess Cty. Hosp., 523 F.2d 1013, 1017 (6th Cir. 1975) (“Although job descriptions should not be accorded as much weight as that given to the duties actually performed by employees in determining whether two jobs are substantially equal, nevertheless, we believe that they may be helpful, particularly where the descriptions of the jobs to be compared are similar and were written by the very employer who claims that wage differentials are not based on an impermissible criterion.”); cf. Burger v. N.Y. Inst. of Tech., 94 F.3d 830, 833 (2d Cir. 1996) (under ADEA, similarity of jobs could be inferred from parallel job titles).

At this stage, the district court was required to accept all of the EEOC’s allegations as true. Instead, in addition to discounting the significance of attorneys’ movement among legal departments, and the attorneys’ job title and code, the court advanced its own theory about the pay discrepancies at the Port Authority, a theory that rejected sex discrimination as a plausible explanation without requiring the Port Authority to offer any justification for the disparity in pay. The Port Authority has embraced the court’s theories in its brief. The court speculated that the Port Authority’s maturity curve “specifies ranges of possible salaries based on experience” and “determinations of specific salaries within those ranges must be based on other factors.” A-113; Def. Br. at 32 (endorsing court’s assumption). And the court opined that “blandly generic” performance criteria such as “project management” and “communication” “may be used to evaluate different employees on different scales.” A-111; Def. Br. at 31 (approving court’s supposition). The court did not elaborate on why this necessarily must be so. But at this stage of the litigation, the court was required to believe the Commission’s factual statements, even if it found another scenario more plausible or appealing. See Anderson News, LLC v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012) (court may not dismiss a complaint stating a plausible version of events merely because the court finds a different version more plausible); Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011) (“The district court erred by not affording the plaintiffs’ allegations the presumption of truth to which they were entitled.”). As the Supreme Court has explained, “Rule 12(b) (6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual obligations” and “a well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 555 (internal citations omitted).

Finally, the Commission alleged in its Responses that the nonsupervisory attorney positions have the same responsibility, accountability, and supervision because the jobs “are all nonsupervisory and have substantially the same reporting structure and the same level of supervision,” are equally significant to the Port Authority, and necessitate making decisions affecting the agency’s rights and liabilities. A-64-65. The district court found that these allegations were sufficient because they “are specific to Port Authority attorneys and directly address the jobs’ degree of accountability and importance of the job obligation.” A-108-109 (internal quotations omitted); EEOC Br. at 11. The Port Authority ignores these facts, perhaps because it cannot explain why the more detailed factual allegations regarding “skill” and “effort” were deemed “broad generalities about attorneys in general,” A-109, while the Commission’s allegations regarding “responsibility” were deemed sufficient. When the allegations regarding “responsibility,” “skill,” and “effort” are viewed under the Twombly facial plausibility standard, it is clear the district court’s dismissal of the case at the pleading stage is untenable.

conclusion

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

CAROLYN L. WHEELER

Acting Assistant General Counsel

/s/ Julie L. Gantz

______________________________

JULIE L. GANTZ

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

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