Galligan et al v. Detroit Free Press et al

Filing 27

ORDER (1) Denying Defendants' 14 Motion to Dismiss Plaintiffs' Amended Complaint and (2) Granting Plaintiffs' 26 Motion to Compel Defendants to Engage in a 26(f) Conference. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KATHLEEN GALLIGAN, et al.,
Plaintiffs,

Case No. 17-cv-13349
Hon. Matthew F. Leitman

v.
DETROIT FREE PRESS, et al.,
Defendants.
_________________________________/
ORDER (1) DENYING DEFENDANTS’ MOTION TO DISMISS
PLAINTIFFS’ AMENDED COMPLAINT (ECF #14) AND (2) GRANTING
PLAINTIFFS’ MOTION TO COMPEL DEFENDANTS TO ENGAGE IN A
26(f) CONFERENCE (ECF #26)
In this action, Plaintiffs Kathleen Galligan, Mary Schroeder, Rose Ann
McKean, Regina H. Boone, Susan Mickels and Ann Zaniewski assert that
Defendants the Detroit Free Press and Gannett Co., Inc. violated the federal Equal
Pay Act of 1963, 29 U.S.C. § 206(d) (the “EPA”) and Michigan’s Elliott-Larsen
Civil Rights Act, Mich. Comp. Laws § 37.2202 (the “ELCRA”) by paying them less
than “similarly situated male colleagues on the basis of their gender, female, even
though [they] performed similar duties requiring the same skill, effort, and
responsibility of male counterparts.” (Am. Compl. at ¶118, ECF #9 at Pg. ID 84; see
also id. at ¶129, Pg. ID 86.) There are currently two motions pending before the
Court: Defendants’ motion to dismiss Plaintiffs’ Amended Complaint (see ECF #14)
and Plaintiffs’ motion to compel Defendants to engage in a Rule 26(f) conference.
1

(See ECF #26.) For the reasons explained below, the Court DENIES Defendants’
motion to dismiss and GRANTS Plaintiffs’ motion to compel.
I
A1
Plaintiffs are employees of the Detroit Free Press, a wholly-owned subsidiary
of Gannett. (See Am. Compl. at ¶¶ 1, 9, ECF #9 at Pg. ID 64-65.) The Amended
Complaint alleges the following facts specific to each Plaintiff and her position:
1. Kathleen Galligan
In December 2002, the Detroit Free Press hired Galligan as a full-time
photographer. (See id. at ¶24, Pg. ID 68.)

Galligan’s primary duties and

responsibilities as a photographer are as follows: “identify newsworthy stories; take
and edit photographs and videos; present and edit images and videos; caption
photographs or write copy blocks; present images and videos for editors’ review;
serve as liaisons between the Detroit Free Press and the Community; build and
maintain contacts and sources within the community; manage any difficulties and
safety issues associated with obtaining newsworthy images and videos in the field.”
(Id. at ¶40, Pg. ID 70.) All photographers employed by the Detroit Free Press have
these same primary duties and responsibilities and perform substantially equal work.

1

The following facts are alleged in Plaintiffs’ Amended Complaint and are assumed
to be true for purposes of this Order.
2

(See id. at ¶¶ 39-40, Pg. ID 70.) In addition, the work performed by all Detroit Free
Press photographers requires equal skill, effort, and responsibility and is performed
under similar working conditions. (See id. at ¶39, Pg. ID 70.)
Galligan holds a Bachelor’s Degree in History and English from Madonna
University. (See id. at ¶27, Pg. ID 68.) She has taken photography courses and
completed specialized photography training. (See id. at ¶¶ 27, 30, Pg. ID 68-69.)
Galligan has also received a number of honors and awards for her work. (See id. at
¶33, Pg. ID 69.) Galligan’s performance, skills, experience, training, qualifications,
and seniority are equal or substantially equal to those of male photographers at the
Detroit Free Press. (See id. at ¶38, Pg. ID 70.) Despite that fact, the Detroit Free
Press has consistently paid Galligan less than similarly-situated male photographers.
(See id. at ¶¶ 36-37, Pg. ID 69-70.)
2. Mary Schroeder
In 1979, the Detroit Free Press hired Schroeder as a photographer. (See id. at
¶41, Pg. ID 71.) Schroeder assumed the position of full-time picture editor, or
photography editor, in or around 2008. (See id. at ¶44, Pg. ID 71.) Schroeder’s work
is analogous to the work of an assistant editor. (See id.) Schroeder’s primary duties
and responsibilities are as follows: “generate newsworthy ideas and topics for online
and print content, assign a staff member to complete the assignment, coach the staff
member to complete the assignment, troubleshoot with the staff member if any

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difficulties arise when completing the assignment, edit the content, prepare the
content for publication online and in print, and develop budgets and ensure that
budget requirements are met.” (Id. at ¶52, Pg. ID 72-73.) All assistant editors
employed by the Detroit Free Press have these same primary duties and
responsibilities and perform substantially equal work. (See id. at ¶¶ 51-52, Pg. ID
72.) In addition, the work performed by all Detroit Free Press assistant editors
requires equal skill, effort, and responsibility and is performed under similar
working conditions. (See id. at ¶51, Pg. ID 72.)
Schroeder holds a Bachelor’s Degree in Fine Arts and Photography from Ohio
University in Athens, Ohio. (See id. at ¶41, Pg. ID 71.) She has also received a
number of honors and awards for her work. (See id. at ¶47, Pg. ID 71.) Schroeder’s
performance, skills, experience, training, qualifications, and seniority are equal or
substantially equal to those of male assistant editors at the Detroit Free Press. (See
id. at ¶50, Pg. ID 72.) Despite that fact, the Detroit Free Press has consistently paid
Schroeder less than similarly-situated assistant editors. (See id. at ¶¶ 48-49, Pg. ID
72.)
3. Rose Ann McKean
The Detroit Free Press hired McKean in 1981. (See id. at ¶53, Pg. ID 73.)
McKean attained the position of full-time photo editor in 2005, and she became a
designer in December 2014. (See id. at ¶¶ 53-54, Pg. ID 73.) McKean’s primary

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duties and responsibilities as a designer are as follows: “use organizational and
creative or aesthetic skills sets to design pages of the newspaper, place stories, and
place and select photographs and headlines. Designers work closely with editors of
various departments and photo editors in the earlier stages of the design process.”
(Id. at ¶63, Pg. ID 75.) All designers employed by the Detroit Free Press have these
same primary duties and responsibilities and perform substantially equal work. (See
id. at ¶¶ 62-63, Pg. ID 74-75.) In addition, the work performed by all Detroit Free
Press designers requires equal skill, effort, and responsibility and is performed under
similar working conditions. (See id. at ¶ 62, Pg. ID 74.)
McKean holds an Associate’s Degree in Arts from Henry Ford College and
has almost attained her Bachelor’s Degree from the University of Michigan,
Dearborn, with a focus on print journalism, English, and sociology. (See id. at ¶56,
Pg. ID 73.) She has also received a number of honors and awards for her work. (See
id. at ¶58, Pg. ID 73.) McKean’s performance, skills, experience, training,
qualifications, and seniority are equal or substantially equal to those of male
designers at the Detroit Free Press. (See id. at ¶61, Pg. ID 74.) Despite that fact, the
Detroit Free Press has consistently paid McKean less than similarly-situated male
designers and assistant editors. (See id. at ¶¶ 59-60, Pg. ID 74.)

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4. Regina H. Boone
The Detroit Free Press hired Boone as a full-time photographer in September
2003. (See id. at ¶64, Pg. ID 75.) In December 2016, Defendants laid off Boone, but
she remained on Defendants’ payroll through June 2017. (See id. at ¶75, Pg. ID 76.)
Boone’s primary duties and responsibilities as a photographer were as follows:
“identify newsworthy stories; take and edits photographs and videos; present and
edit images and videos; caption photographs or write copy blocks; present images
and videos for editors’ review; serve as liaisons between the Detroit Free Press and
the community; build and maintain contacts and sources within the community;
manage any difficulties and safety issues associated with obtaining newsworthy
images and videos in the field.” (Id. at ¶81, Pg. ID 77.) All photographers employed
by the Detroit Free Press have these same primary duties and responsibilities and
perform substantially equal work. (See id. at ¶¶ 80-81, Pg. ID 77.) In addition, the
work performed by all Detroit Free Press photographers requires equal skill, effort,
and responsibility and is performed under similar working conditions. (See id. at
¶80, Pg. ID 77.)
Boone holds a Bachelor’s Degree in Political Science from Spelman College
and a graduate degree (with a focus on photojournalism) from Ohio University’s
School of Visual Communication. (See id. at ¶¶ 66, 69, Pg. ID 75.) She has also
received a number of honors and awards for her work. (See id. at ¶73, Pg. ID 76.)

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Boone’s skills, experience, training, qualifications, and seniority were equal or
substantially equal to those of male photographers at the Detroit Free Press. (See id.
at ¶79, Pg. ID 77.) Despite that fact, the Detroit Free Press consistently paid Boone
less than similarly-situated male photographers. (See id. at ¶¶ 77-78, Pg. ID 77.)
5. Susan Mickels
The Detroit Free Press hired Mickels in 1984. (See id. at ¶82, Pg. ID 78.)
Mickels joined the Food section in 1995 and became a reporter in 2011. (See id. at
¶83, Pg. ID 78.) Mickels’ primary duties and responsibilities as a reporter are as
follows: “gather and uncover news and information; conduct research; interview
individuals; identify and spot stories and trends; pitch story ideas to editors; pursue
story assignments given by editors; write stories; establish and maintain contacts
with sources; format stories for online publication; and take photos and videos when
needed.” (Id. at ¶99, Pg. ID 80-81.)

All reporters employed by the Detroit Free

Press have these same primary duties and responsibilities and perform substantially
equal work. (See id. at ¶¶ 98-99, Pg. ID 80-81.) In addition, the work performed by
all Detroit Free Press reporters requires equal skill, effort, and responsibility and is
performed under similar working conditions. (See id. at ¶98, Pg. ID 80.)
Mickels has taken a number of collegiate courses in culinary arts, nutrition,
and journalism at Henry Ford Community Colleges and the University of MichiganDearborn; has received a Nutrition Certification from Monroe Community College;

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and has attended the Culinary Institute of America’s course in food styling. (See id.
at ¶88, Pg. ID 79.) Mickels is also a published author, and she has received a number
of honors and awards related to her work. (See id. at ¶¶ 90-93, Pg. ID 79-80.)
Mickels’ performance, skills, experience, training, qualifications, and seniority are
equal or substantially equal to those of male reporters at the Detroit Free Press. (See
id. at ¶97, Pg. ID 80.) Despite that fact, the Detroit Free Press has consistently paid
Mickels less than similarly-situated male reporters. (See id. at ¶¶ 95-96, Pg. ID 80.)
6. Ann Zaniewski
The Detroit Free Press hired Zaniewski as a full-time reporter in August 2012.
(See id. at ¶100, Pg. ID 81.) Zaniewski’s primary duties and responsibilities as a
reporter are as follows: “gather and uncover news and information; conduct
research; interview individuals; identify and spot stories and trends; pitch story ideas
to editors; pursue story assignments given by editors; write stories; establish and
maintain contacts with sources; format stories for online publication; and take photos
and videos when needed.” (Id. at ¶115, Pg. ID 83.) All reporters employed by the
Detroit Free Press have these same primary duties and responsibilities and perform
substantially equal work. (See id. at ¶¶ 114-15, Pg. ID 83.) In addition, the work
performed by all Detroit Free Press reporters requires equal skill, effort, and
responsibility and is performed under similar working conditions. (See id. at ¶114,
Pg. ID 83.)

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Zaniewski holds a Bachelor’s Degree in Journalism with Honors and a
Communication Minor from Oakland University. (See id. at ¶103, Pg. ID 81.)
Zaniewski has also received a number of honors and awards related to her work.
(See id. at ¶¶ 107, 110, Pg. ID 81-82.) Zaniewski’s performance, skills, experience,
training, qualifications, and seniority are equal or substantially equal to those of male
reporters at the Detroit Free Press. (See id. at ¶113, Pg. ID 83.) Despite that fact, the
Detroit Free Press has consistently paid Zaniewski less than similarly-situated male
reporters. (See id. at ¶¶ 111-12, Pg. ID 83.)
B
On October 13, 2017, Plaintiffs Galligan, Schroeder, McKean, and Boone
filed a Complaint in this Court against Defendants. (See Compl., ECF #1.) These
Plaintiffs alleged that Defendants violated the EPA and ELCRA when they
“discriminat[ed] against Plaintiffs on the basis of their gender by providing them
with less compensation than similarly situated male employees performing the same
or similar duties.” (See id. at ¶2, Pg. ID 2.)
On November 8, 2017, Defendants moved to dismiss the Complaint on the
ground that it lacked allegations relating to the Plaintiffs’ “actual work performed,
their compensation, or the work or compensation of any alleged male comparators.”

9

(Motion to Dismiss, ECF #7 at Pg. ID 41.) In lieu of responding to Defendants’
motion, Plaintiffs filed an Amended Complaint.2 (See Am. Compl., ECF #9.)
In the Amended Complaint, Plaintiffs again alleged that Defendants violated
the EPA and ELCRA, and Plaintiffs added new allegations (many of which are set
forth above in Section I(A)) concerning their pay, their actual work responsibilities
and duties, and the pay and duties of their male comparators. (See id.) The Amended
Complaint also repeated allegations from the original Complaint about a pay study
(titled the “Sex and Wage Report”) conducted by the Newspaper Guild of Detroit
(the “Guild”), the union that represents the Detroit Free Press’ full-time assistant
editors, copy editors, designers, photographers, reporters, and web designers. (See
id. at ¶15, Pg. ID 66.) In the Sex and Wage Report, the Guild analyzed pay data
from 2013-2015 for the following categories of employees at the Detroit Free Press:
assistant editor, copy editor, designer, photographer, reporter, and web designer.
(See id. at ¶18, Pg. ID 66.) The Guild found that the male median wage was higher
than the female median wage in almost every one of those employment categories.
(See id. at ¶19, Pg. ID 66.) The Guild also concluded that female employees’ wages
grew at a slower rate over time than male employees’ wages. (See id. at ¶20, Pg. ID
67.) Plaintiffs contend that the Detroit Free Press and Gannett are aware of the Sex

2

The Amended Complaint added Mickels and Zaniewski as Plaintiffs in this action.
10

and Wage Report’s findings but are uninterested in resolving the pay disparities
described in that report. (See id. at ¶22, Pg. ID 67.)
On November 29, 2017, Defendants filed a motion to dismiss the Amended
Complaint. (See ECF #14.) That motion is fully briefed and ready for decision.
On February 26, 2018, Plaintiffs filed a motion to compel Defendants to
engage in a Federal Rule of Civil Procedure 26(f) conference. (See ECF #26.)
Plaintiffs attached to the motion correspondence from defense counsel indicating
that Defendants would participate in a Rule 26(f) conference if and when the Court
denied the motion to dismiss the Amended Complaint. (See ECF #26-2 at Pg. ID
224.)
The Court has determined that it may properly resolve Defendants’ motion to
dismiss and Plaintiffs’ motion to compel without a hearing. See L.R. 7.1(f).
II
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint
when a plaintiff fails to state a claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when a plaintiff
pleads factual content that permits a court to reasonably infer that the defendant is

11

liable for the alleged misconduct. See id. (citing Twombly, 550 U.S. at 556). When
assessing the sufficiency of a plaintiff’s claim, a district court must accept all of a
complaint’s factual allegations as true. See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d
509, 512 (6th Cir. 2001). “Mere conclusions,” however, “are not entitled to the
assumption of truth.

While legal conclusions can provide the complaint’s

framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 664.
A plaintiff must therefore provide “more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of action” to survive a motion to
dismiss. Twombly, 550 U.S. at 556. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id.
III
A
Plaintiffs have asserted a viable EPA claim against Defendants. “To prove an
employer has violated the Equal Pay Act, a plaintiff must show that the employer
paid an employee of the opposite sex different wages for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.” Warf v. U.S. Dep’t of Veterans
Affairs, 713 F.3d 874, 881 (6th Cir. 2013) (quotations omitted). Plaintiffs’ Amended
Complaint plausibly alleges each of these elements. It first describes Plaintiffs’ job
duties with some particularity. It then asserts that all employees holding the same

12

positions as Plaintiffs perform those same duties under similar working conditions;
that the duties performed by Plaintiffs and their counterparts holding the same
positions require equal skill; that Plaintiffs’ qualifications are equal to or better than
their male counterparts who perform the same jobs with the same duties; and that
Plaintiffs have been paid less than their similarly-situated male counterparts for the
same work. That is enough to state an EPA claim on which relief can be granted.
See, e.g., Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (reversing
dismissal of EPA claim where plaintiff alleged “that she is female,” “facts regarding
her . . . salary, as well as the salaries of other similarly situated male employees,”
and “that she was paid less than the similarly situated male employees [in part] . . .
because she was a woman”); Baker v. Ruan Transp. Corp., 2009 WL 200769, at *1,
*3 (E.D. Tenn. Jan. 27, 2009) (concluding that plaintiff stated a viable EPA claim
where she alleged “that males who were offered and/or received the full-time
dispatcher position were paid in excess of that which was paid to [the plaintiff] in
the dispatcher position she occupied for the same job duties” (quotations omitted)).
Defendants counter that Plaintiffs’ EPA claim does not meet the pleading
standard for EPA claims applied by the United States Court of Appeals for the Sixth
Circuit in Unger v. City of Mentor, 387 Fed. App’x 589 (6th Cir. 2010). In Unger,
the Sixth Circuit affirmed dismissal of a plaintiff’s EPA claim. But the complaint
in Unger bore scant resemblance to Plaintiffs’ Amended Complaint in this case. The

13

complaint in Unger “cite[d] nothing more than the claim’s legal elements, neglecting
to provide any factual basis in support.” 387 Fed. App’x at 595. In sharp contrast
here, as set forth in detail above, Plaintiffs’ Amended Complaint includes factual
allegations concerning Plaintiffs’ duties and qualifications, the duties and
qualifications of Plaintiffs’ male counterparts, the conditions under which Plaintiffs
and their male counterparts work, and the pay disparities between Plaintiffs and their
male counterparts. Accordingly, Unger does not support dismissal of Plaintiffs’
EPA claim.
Similarly, this Court’s decision in Hall v. Int’l House of Pancakes, Inc., 2005
WL 1684150 (E.D. Mich. July 15, 2005), on which Defendants also rely, does not
suggest that Plaintiffs’ EPA allegations are deficient. In Hall, another Judge of this
Court dismissed a pro se plaintiff’s constitutional and EPA claims because the
plaintiff did not “allege a specific federal constitutional right that has been violated,
membership in a federally protected class, different treatment with respect to other
similarly situated employees not members of plaintiff’s protected class, or the
payment of disparate wages as between plaintiff and a similarly situated [defendant]
employee who is not a member of plaintiff’s protected class.” 2005 WL 1684150, at
*2. Hall is simply inapposite given the factual allegations that Plaintiffs have made
in their Amended Complaint.

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Defendants also argue that Plaintiffs’ EPA claims suffer from “a misplaced
reliance on position titles” to satisfy the requirement that Plaintiffs’ respective skills,
efforts, and responsibilities are substantially equal to their similarly-situated male
colleagues. (Mot. to Dismiss, ECF #14 at Pg. ID 119.) The Court disagrees. As
noted above, Plaintiffs do not merely cite job titles. Instead, Plaintiffs list specific
responsibilities performed by employees holding various job titles, and Plaintiffs’
EPA claims are viable because they include “sufficient factual matter, accepted as
true to permit the reasonable inference that the relevant employees’ job content was
substantially equal.” E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d
247, 256 (2d Cir. 2014) (emphasis in original) (quotation marks omitted)
(identifying one of the essential components of a viable EPA claim).3
Moreover, the primary cases on which Defendants rely in support of their jobtitle-only argument are distinguishable. For instance, in Port Authority of New York
& New Jersey, the United States Court of Appeals for the Second Circuit affirmed
dismissal of an EPA claim brought by the EEOC because – unlike Plaintiffs’ EPA

3

Defendants also rely on a number of cases granting summary judgment against
plaintiffs on EPA claims. See, e.g., Foco v. Freudenberg-NOK General Partnership,
892 F. Supp. 2d 871, 878 (E.D. Mich. 2012); Carey v. Foley & Lardner, 577 Fed.
App’x 573, 580 (6th Cir. 2014). But those decisions rested upon the insufficiency
of the plaintiff’s evidence and did not purport to evaluate the sufficiency of the
plaintiff’s pleadings. Thus, those decisions are not especially instructive here.

15

claim here – it did not contain any factual allegations concerning the work actually
performed by the various employees at issue. The court explained:
First, the EEOC alleges in its complaint only that the Port
Authority paid its female nonsupervisory attorneys less
than its male nonsupervisory attorneys “for substantially
equal work,” that these attorneys had “the same job code,”
and that the disparity in pay “cannot be attributed to
factors other than sex.” The EEOC’s bald recitation of the
elements of an EPA claim and its assertion that the
attorneys at issue held “the same job code” are plainly
insufficient to support a claim under the
EPA. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955
(deeming a “formulaic recitation of the elements of a cause
of action” insufficient to survive a motion to
dismiss); Tomka [v. Seiler Corp.], 66 F.3d [1295,] 1310
[(2d. Cir. 1995)] (rejecting reliance on “job title or
description” alone under the EPA).
Id. at 256.4
4

The Second Circuit in Port Authority of New York & New Jersey stressed that the
absence of allegations concerning the content of the relevant job was especially
noteworthy because the EEOC had performed a three-year investigation before filing
the EPA claim:
Simply put, the EEOC has not alleged a single
nonconclusory fact supporting its assertion that the
claimants’ and comparators’ jobs required “substantially
equal” skill and effort. That the EEOC’s failure to include
such factual allegations followed a three-year
investigation into the Port Authority’s pay practices—an
investigation conducted with the Port Authority’s
cooperation—is of some note. The determination of
whether a complaint states a plausible claim for relief is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Here, the
EEOC had ready access to Port Authority documents and
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Defendants’ reliance on Noel-Batiste v. Virginia State University, 2013 WL
499342 (E.D. Va. Feb. 7, 2013), and Spencer v. Virginia State University, 224 F.
Supp. 2d. 449, 457 (E.D. Va. 2016), is likewise misplaced. In Noel-Batiste, the
district court dismissed the plaintiff’s EPA claim because the complaint lacked any
“reference to the skills, effort, responsibilities required of her as an ‘Associate
Professor’ or to those of the male professors who she alleges receive a greater
salaries.” 2013 WL 499342, at *6. In Spencer v. Virginia State University, the
district court dismissed the plaintiff’s EPA claim because the plaintiff did “not allege
with specificity the responsibilities and requirements of her own position” and how
those compared to her alleged male colleagues. 224 F. Supp. 2d. 449, 457 (E.D. Va.
2016).

But once again, Plaintiffs’ Amended Complaint includes allegations

regarding Plaintiffs’ respective duties and responsibilities and those of their male
counterparts. Defendants have not cited any decision in which a federal court has

employees, including to the claimants asserting EPA
violations, yet the EEOC failed—in fact, repeatedly
rejected the need—to allege any factual basis for inferring
that the attorneys at issue performed “substantially equal”
work.
Port Auth. of New York & New Jersey, 768 F.3d at 258. Unlike the EEOC, Plaintiffs
here have not had an opportunity to conduct their own detailed investigation into
Defendants’ pay practices. This difference further undermines Defendants’ reliance
upon Port Auth. of New York & New Jersey.
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dismissed an EPA claim that mirrors the claim asserted by Plaintiffs in their
Amended Complaint.
Finally, Defendants dispute Plaintiffs’ allegations that their work is similar to
their alleged male comparators. Defendants insist that “it is common sense that there
are different news departments, covering different types of information and events
with different levels of importance” and that “[w]ithin those departments there are
different levels of skills and responsibilities.” (Mot. to Dismiss, ECF #14 at Pg. ID
121.) But this argument is an attack on the truth of Plaintiffs’ allegations and is not
appropriate at this stage in the proceedings. See Baker, 2009 WL 200769, at *3 (“On
a motion to dismiss [an EPA claim], the Court must accept as true [plaintiff’s]
allegations that she performed the ‘identical’ or the ‘same job duties’ as those with
whom she seeks to compare herself.”). There may well be some force to Defendants’
contention that there are important differences in the skills and responsibilities of the
various reporters, designers, photographers, and editors at the Detroit Free Press, and
the Court will carefully consider Defendants’ position if presented in a later motion
for summary judgment. But at this point, the Court declines to dismiss Plaintiffs’
EPA claim.
B
The Court likewise declines to dismiss Plaintiffs’ ELCRA claim. Defendants
contend that “the same reasons compelling dismissal of Plaintiffs’ EPA claim” also

18

compel dismissal of Plaintiffs’ ELCRA claim because the two claims are “nearly
identical.” (Mot. To Dismiss, ECF #14 at Pg. ID 128.) But, as explained above, the
reasons offered by Defendants do not compel dismissal of the EPA claim, and
therefore those reasons do not compel dismissal of the allegedly-identical ELCRA
claim.
C
In sum, Plaintiffs have plausibly alleged that the Defendants violated the EPA
and ELCRA. Defendants’ motion to dismiss is therefore denied.
IV
Because the Court denies Defendants’ motion to dismiss, Defendants are
directed to engage in the Rule 26(f) conference as required by the Federal Rules of
Civil Procedure. Accordingly, Plaintiffs’ motion to compel is granted.
V
For the reasons stated above, IT IS HEREBY ORDERED THAT
Defendants’ motion to dismiss the Amended Complaint (ECF #14) is DENIED and
Plaintiffs’ motion to compel Defendants to engage in a 26(f) conference (ECF #26)
is GRANTED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 6, 2018

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 6, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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