CLARK v. CZECH et al

Filing 47

OPINION. Signed by Judge Freda L. Wolfson on 8/12/2016. (km)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DARREN CLARK,

:
:
Plaintiff, :
:
v.
:
:
:
STATE OF NEW JERSEY
DEPARTMENT OF HEALTH, and
:
:
OFFICE OF TOBACCO CONTROL,
:
NUTRITION, AND FITNESS,
:
Defendants. :

Civ. Action No.: 12-7763 (FLW)(TJB)
OPINION

WOLFSON, United States District Judge
Pro se plaintiff Darren Clark (“Plaintiff”) brings this employment sex discrimination suit
against Defendants New Jersey Department of Health (the “DOH”), and Office of Tobacco
Control, Nutrition, and Fitness (the “OTC”) (collectively “Defendants”), 1 alleging a violation of
the Equal Pay Act of 1963 (the “EPA”), 29 U.S.C. § 206, et seq., and the Fair Labor Standards Act
(the “FLSA”), 29 U.S.C.S. § 201, et seq. Defendants move to dismiss Plaintiff’s Second Amended

1

The punctuation of the Second Amended Complaint is somewhat ambiguous. Plaintiff lists the
named defendants in the following way:
The State of New Jersey
Department of Health,
Office of Tobacco Control, Nutrition, and Fitness
(formerly Office of Tobacco Control)
Second Am. Compl. (“SAC”) 1. It is unclear whether Plaintiff intended to name the State of New
Jersey as a separate defendant. However, because Plaintiff references both the DOH and the OTC,
but not the State of New Jersey, in the body of the Second Amended Complaint, the Court
presumes that the DOH and the OTC are the only two intended defendants.
1

Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim and Eleventh
Amendment sovereign immunity. Defendants also appear to move for summary judgment,
pursuant to Fed. R. Civ. P. 56, for the same reasons. Plaintiff opposes both motions.
For the reasons set forth below, Defendants’ motion to dismiss is GRANTED as to
Plaintiff’s FLSA claim and DENIED as to Plaintiff’s EPA claim. Additionally, insofar as
Defendants are moving for summary judgment, this motion is DENIED without prejudice.
I.

Procedural and Factual Background
The following allegations are taken from Plaintiff’s Second Amended Complaint and are

assumed as true for the purposes of this motion to dismiss. Plaintiff is currently employed by the
New Jersey Department of Health (the “DOH”) in the Office of Tobacco Control, Nutrition and
Fitness (formerly the Office of Tobacco Control) (the “OTC”). SAC at 1. Plaintiff was first hired
by the DOH in May 2000 as a Public Health Representative Trainee. SAC at 2. Over the next few
years, Plaintiff was promoted multiple times, until in 2003, he was given the title of Public Health
Officer 1 (range 24). 2 SAC at 2.
In 2008, the DOH’s Comprehensive Tobacco Control Program was reorganized and
Plaintiff was assigned new duties. SAC at 2. As part of this reorganization, Plaintiff and his
coworkers were informed by the Assistant Commissioner for the DOH that “if [they] felt [their]
current titles were not appropriate for [their] new duties a position classification application had
to be submitted to the State of New Jersey Civil Service Commission.” SAC at 2. Consequently,
Plaintiff submitted a position classification application to the CSC in 2008. SAC at 2. At the same
time, Plaintiff’s female coworker, Felicia Walton, whose then title was Community Service Officer

2

In the DOH, an employee’s range represents their pay grade – the higher the range number, the
higher the employee’s salary. SAC at 2.
2

3 (range 18), also applied for a position classification from the CSC. SAC at 2. In 2009, the CSC
determined that Plaintiff’s duties corresponded to the title of Community Service Officer 2,
Addictions (“CSO2”) (range 21), and Ms. Walton’s duties corresponded to the title of Community
Service Officer 1, Addictions (“CSO1”) (range 26). SAC at 2. Plaintiff appealed his 2009
classification as CSO2 to the CSC, but the CSC determined that the classification was correct.
SAC at 3.
The assignment of these new titles to Plaintiff and Ms. Walton meant that Ms. Walton had
a higher status than Plaintiff, was paid a higher salary by the DOH, and was eligible for bonus
payments from the DOH, which Plaintiff could not receive as a CSO2. SAC at 2. However,
Plaintiff claims that contrary to the CSC’s assessments, at all times, he and Ms. Walton had
“substantially similar job duties.” SAC at 2. Additionally, Plaintiff asserts that his other female
coworkers, Irene Enarusai and Carla Carter, who were given the title CSO1 by the DOH prior to
2009, also had “substantially similar job duties” to his duties and Ms. Walton’s duties. SAC at 2.
Ms. Enarusai and Ms. Carter, by virtue of their superior titles, also enjoyed higher status, salary,
and bonuses than Plaintiff. SAC at 2.
In August/September 2010, the OTC was reorganized for a second time. SAC at 3. As part
of this second reorganization, Plaintiff was assigned additional responsibilities. SAC at 3.
According to Plaintiff, the reorganization resulted in Plaintiff having “responsibilities equal to or
exceeding those of [Ms. Walton, Ms. Enarusai, and Ms. Carter].” SAC at 3. Based on his new
duties and responsibilities, Plaintiff submitted a new position classification application to the CSC.
SAC at 3. However, the CSC again determined that Plaintiff should be classified as CSO2. SAC
at 3. For a second time, Plaintiff appealed this classification to the CSC, and the CSC confirmed
that CSO2 remained Plaintiff’s proper job title. SAC at 3.
3

Because the CSC assigned Plaintiff the rank of CSO2, despite the fact that Ms. Walton,
Ms. Enarusai, and Ms. Carter, who performed the same or lesser duties, held the title of CSO1,
Plaintiff alleges that the CSC’s process for determining the appropriate classification must be
based on something other than his actual job duties. SAC at 2-3. Plaintiff asserts that such
differential treatment constitutes discrimination against him on the basis of his sex. SAC at 3-4.
Consequently, Plaintiff brings claims under the EPA and the FLSA against the DOH for
discriminating between himself and his female coworkers on the basis of sex by “demoting and
compensating [him] at a salary rate and increment step rate lower than the three female coworkers
Felicia Walton, Irene Enarusai and Carla Carter for substantially equal duties.” SAC at 3-4.
As remedies, Plaintiff seeks payment from the DOH for the difference in his salary
(approximately $2,300 per year) and the yearly bonuses received by his female coworkers
(approximately $2,758 per year) since the date of his allegedly inappropriate classification as
CSO2 in 2009. SAC at 4. Additionally, Plaintiff requests that the Court enjoin the DOH to classify
him as either CSO1 or Program Specialist 1, Medical Assistance & Health Services, and to
compensate him at the same rate as his CSO1 female coworkers. SAC at 4. 3
On December 20, 2012, Plaintiff filed the initial Complaint in this action. In that
Complaint, Plaintiff alleged generally the same facts as those detailed supra, and brought the same
EPA claim against the OTC, as well as the following former defendants: acting Chairperson of the
CSC, Robert M. Czech, acting Director of the CSC Merit System Practices & Labor Relations

3

The Court notes that Plaintiff does not assert any claims against, or seek remedies from, the OTC
individually in the “Causes of Action and Demand” section of the Second Amended Complaint.
SAC at 4. However, in the “Background and Parties” section of the Amended Complaint, Plaintiff
clarifies that “the relief sought in this Amended Complaint is sought from all of these Defendants.”
SAC at 1.
4

Written Record Appeals Unit, Henry Maurer, and acting Assistant Director of the CSC Division
of State and Local Government Operations, Joe Hill, Jr. (“Individual Defendants”). Compl. 1. The
DOH was not listed as a defendant in the original Complaint. In that Complaint, Plaintiff alleged
that the CSC had “render[ed] decisions based on a position classification process that violates the
Equal Pay Act.” Compl. 1.
After full discovery, the OTC and Individual Defendants moved to dismiss Plaintiff’s
Complaint, asserting (1) that they were immune from suit under the Eleventh Amendment of the
U.S. Constitution, (2) the Individual Defendants were entitled to qualified immunity, and (3)
Plaintiff had failed to state a claim under the EPA. In an Opinion dated March 10, 2015, the Court
denied the motion to dismiss, but directed Plaintiff to amend his Complaint to clarify the capacity
in which he intended to bring his suit against Individual Defendants. Specifically, the Court
directed Plaintiff to clearly allege whether he intended to name Individual Defendants as
defendants in their individual capacities, or name the CSC as a defendant.
On March 30, 2015, Plaintiff amended his Complaint to voluntarily dismiss the Individual
Defendants from the case and add the CSC as a defendant. The DOH was not listed as a defendant
in the Amended Complaint. The general facts alleged and the cause of action asserted in the
Amended Complaint were substantially the same as those asserted in the original Complaint. On
May 26, 2015, the OTC and the CSC moved to dismiss the Amended Complaint for failure to state
a claim, failure to exhaust administrative remedies, issue preclusion, and collateral estoppel. In an
Opinion dated December 7, 2015, the Court found that failure to exhaust administrative remedies,
issue preclusion, and collateral estoppel did not preclude Plaintiff from bringing his EPA claim.
Nonetheless, the Court granted the motion and dismissed the Amended Complaint without
prejudice, because under the facts alleged, the DOH, and not the OTC or the CSC appeared to be
5

Plaintiff’s “employer,” under the EPA’s definition of the term. The Court gave Plaintiff leave to
amend his Complaint, again, to allege more facts to identify his employer and to join his employer
as a defendant.
On January 4, 2016, Plaintiff filed the Second Amended Complaint, which alleges more
specific facts regarding his employee-employer relationship with the DOH and the OTC; he also
dropped the CSC as a defendant and named the DOH as a defendant. The Second Amended
Complaint also newly asserts claims under the FLSA, in addition to Plaintiff’s original sex
discrimination claims under the EPA. Presently, Defendants move to dismiss Plaintiff’s claims,
pursuant to Rule 12(b)(6) and Rule 56, for failure to state a claim and Eleventh Amendment
sovereign immunity. Plaintiff opposes this motion.
II.

Motion to Dismiss Standard of Review
Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss on the
pleadings, courts “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008) (quotations omitted). Under such a standard, the factual allegations set forth in a complaint
“must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “[A] complaint must do more than allege the plaintiff’s entitlement to relief.
A complaint has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578
F.3d 203, 211 (3d Cir. 2009).
6

However, Rule 12(b)(6) only requires a “short and plain statement of the claim showing
that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The complaint must include
“enough factual matter (taken as true) to suggest the required element. This does not impose a
probability requirement at the pleading stage, but instead simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of the necessary element.” Phillips, 515
F.3d at 234 (citation and quotations omitted); Covington v. Int’l Ass’n of Approved Basketball
Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in detail the
facts upon which he bases his claim. The pleading standard is not akin to a probability requirement;
to survive a motion to dismiss, a complaint merely has to state a plausible claim for relief.”)
(citation and quotations omitted). Moreover, where the plaintiff is proceeding pro se, the complaint
should be “liberally construed,” and, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 93-94.
In sum, under the current pleading regime, when a court considers a dismissal motion, three
sequential steps must be taken: first, “it must take note of the elements the plaintiff must plead to
state a claim.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quotations and
brackets omitted). Next, the court “should identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. (quotations omitted). Lastly, “when
there are well-pleaded factual allegations, the court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. (quotations and brackets
omitted).

7

III.

Analysis
A. FLSA Claim
Defendants contend that the Eleventh Amendment bars Plaintiff’s newly asserted FLSA

claim against both Defendants. The Eleventh Amendment provides that “[t]he judicial power of
the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of another state, or by citizens or subjects
of any foreign state.” U.S. Const. amend. XI. The amendment affords states immunity from suits
brought by citizens in federal court, regardless of whether legal or equitable relief is sought.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Thorpe v. New
Jersey, 246 F. App’x 86, 87 (3d Cir. 2007). This immunity from suit also extends to agencies,
departments, and officials of the state when the state is the real party in interest. Alabama v. Pugh,
438 U.S. 781, 781 (1978); Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d.
Cir. 2002); Chisolm v. McManimon, 275 F.3d 315, 323 (3d Cir. 2001). The state is a party in
interest when “the judgment sought would expend itself on the public treasury or domain, or
interfere with the public administration, or if the effect of the judgment would be to restrain the
Government from acting or to compel it to act.” Fitchik v. New Jersey Transit Rail Operations,
Inc., 873 F.2d 655, 659 (3d. Cir. 1989). In short, sovereign immunity is appropriate if the named
defendant is an “arm of the state.” Davis v. Lakewood, No. 03-1025, 2005 WL 1863665, at *3
(D.N.J. Aug.4, 2005) (citing Chisolm, 275 F.3d at 323).
Regarding the instant case, the Third Circuit has long held that the DOH is an arm of the
State of New Jersey for sovereign immunity purposes. See, e.g. Aerated Products Co. v. Dep’t of
Health, 159 F.2d 851, 853 (3d Cir. 1947); Rouse v. N.J. HHS, Civ. No. 15-01511 (JLL), 2015 U.S.
Dist. LEXIS 139440, at *6 (D.N.J. Oct. 13, 2015); Mercer Cty. Children’s Med. Daycare, LLC v.
8

O’Dowd, Civ. No. 13-1436, 2014 U.S. Dist. LEXIS 16038, at *9 (D.N.J. Feb. 7, 2014); Rahman
v. Taylor, Civ. No. 10-0367 (JBS), 2010 U.S. Dist. LEXIS 53661, at *16 (D.N.J. May 27, 2010).
Moreover, as a subdivision of the DOH, the OTC is likewise an arm of the state for sovereign
immunity purposes. Consequently, both Defendants are immune from suit under the Eleventh
Amendment.
There are three narrowly circumscribed exceptions that have been established to limit the
breadth of the Eleventh Amendment: “1) congressional abrogation, 2) state waiver, and 3) suits
against individual state officers for prospective relief to end an ongoing violation of federal law.”
MCI Telecomm. Corp. v. Bell Atl. Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001). However, none
of these exceptions apply to Plaintiff’s FLSA claim against Defendants. Regarding the first
exception, the Supreme Court has definitively found that Congress does not have the power to
abrogate states’ Eleventh Amendment immunity as to claims by private parties under the FLSA.
Alden v. Maine, 527 U.S. 706, 712 (1999) (state employees do not have a private remedy in either
state or federal court against their state employers for violations of the FLSA). As to the second
exception, New Jersey has not waived its sovereign immunity with respect to FLSA claims. See
Doe v. N.J. Dep’t of Corr., Civ. No., 2015 U.S. Dist. LEXIS 69569, at *22 (D.N.J. May 29, 2015)
(“In several non-precedential decisions, the Third Circuit has relied on Ritchie v. Cahall, 386
F.Supp. 1207, 1209-10 (D.N.J.1974), and upheld dismissals of tort claims against the State brought
in federal court because the [New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq.,] did not waive
sovereign immunity as to federal court proceedings.”) (citing Hyatt v. County of Passaic, 340 F.
App’x. 833, 837 (3d Cir. 2009) and Mierzwa v. United States, 282 F. App’x. 973, 976 (3d Cir.
2008)). And finally, with regard to the third exception, Plaintiff does not bring any claims against
individual state officers. For these reasons, the Court finds that Plaintiff’s FLSA claim is barred
9

by Eleventh Amendment sovereign immunity and consequently, this Court lacks subject matter
jurisdiction over this claim. Accordingly, Plaintiff’s FLSA claim is dismissed with prejudice.
B. EPA Claim 4
Under the EPA, with some exceptions, an employee may bring an action against his
employer if his employer
discriminate[s] . . . between [the employee and other] employees on the basis of sex
by paying wages to [the employee] in such establishment at a rate less than the rate
at which [the employer] pays wages to employees of the opposite sex in such
establishment for equal work on jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar working
conditions, except where such payment is made pursuant to (i) a seniority system;
(ii) a merit system; (iii) a system which measures earnings by quantity or quality of
production; or (iv) a differential based on any other factor other than sex.
29 U.S.C.A. §§ 206(d), 216(b). Claims based upon the EPA follow a two-step burden-shifting
paradigm, wherein the plaintiff must first allege and “establish a prima facie case by demonstrating
that employees of the opposite sex were paid differently for performing ‘equal work’—work of
substantially equal skill, effort and responsibility, under similar working conditions.” Stanziale v.
Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000) (citing E.E.O.C. v. Delaware Dep’t. of Health and
Social Services, 865 F.2d 1408, 1413–14 (3d Cir. 1989). Thereafter, the employer has the burden
of demonstrating the applicability of one of the four affirmative defenses identified in the EPA: (i)

4

This Court previously ruled in the March 10, 2015 Opinion that Eleventh Amendment sovereign
immunity does not bar Plaintiff’s claim under the EPA, because pursuant to § 5 of the Fourteenth
Amendment, Congress has abrogated states’ immunity from EPA claims. Clark v. Czech, Civ. No.
12-7763 (FLW)(TJB), 2015 U.S. Dist. LEXIS 29496, at *8 (D.N.J. Mar. 10, 2015) (citing Arnold
v. BLaST Intermediate Unit 17, 843 F.2d 122, 126 (3d Cir. 1988)); see also 29 U.S.C. § 203(e)
(stating that employees of a state, political subdivision of a state, or state agency are covered by
the Act); § 216(b) (stating that employers are liable to the employee affected by violations of the
Act); Visnikar v. Dep’t of Envtl. Prot., Civ. No. 02-963, 2004 U.S. Dist. LEXIS 3645, at *45 (W.D.
Pa. Jan. 27, 2004) (“The Third Circuit has made clear that states are not immune from claims
brought under the disparate wage provisions of the EPA.”).
10

a bona fide seniority system, (ii) a merit system, (iii) a system which measures earnings by quantity
or quality of production, or (iv) a differential based on any factor other than sex. See 29 U.S.C. §
206(d)(1); see also Stanziale, 200 F.3d at 107.
Defendants do not dispute that they are Plaintiff’s “employers,” within the meaning of the
EPA. 5 Rather, Defendants argue that under the facts alleged, they have not violated the EPA,
because “[t]he decisions of the CSC cannot be attributed to the DOH and OTC.” Br. in Supp. of

5

The EPA defines an “employer” as “any person acting directly or indirectly in the interest of an
employer in relation to an employee and includes a public agency . . . .” 29 U.S.C.A. § 203(d). The
definition of employer under the EPA is exceedingly broad, and “[t]he Supreme Court has even
gone so far as to acknowledge that the [act’s] definition of an employer is ‘the broadest definition
that has ever been included in any one act.’” In re Enterprise. Rent-A-Car Wage & Hour
Employment Practices Litig., 683 F.3d 462, 467-68 (3d Cir. 2012) (quoting United States v.
Rosenwasser, 323 U.S. 360, 363 n. 3 (1945)). Under the EPA’s definition of employer, an
employee may have more than one employer--the term is not given a restrictive common law
construction--rather courts are “admonished to examine the economic realities presented by the
facts of each case.” Hodgson v. Arnheim & Neely, Inc., 444 F.2d 609, 612 (3d Cir. 1971) rev’d on
other grounds 410 U.S. 512, 93 (1973) (citing Goldberg v. Whitaker House Co-op., Inc., 366 U.S.
28, 33 (1961)). “[W]here two or more employers exert significant control over the same
employees—[whether] from the evidence it can be shown that they share or co-determine those
matters governing essential terms and conditions of employment—they constitute joint employers
under the [EPA].” Enterprise, 683 F.3d at 468 (quoting N.L.R.B. v. Browning-Ferris Indus. of
Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d Cir. 1982)) (internal quotations omitted). “Ultimate
control is not necessarily required to find an employer-employee relationship,” instead, the alleged
employer need only exercise “significant control.” Enterprise, 683 F.3d at 468 (quoting BrowningFerris, 691 F.2d at 1124) (internal quotations omitted). Moreover, even indirect control may be
sufficient under the EPA, if it is significant. Enterprise, 683 F.3d at 468 (citing Browning-Ferris,
691 F.2d at 1124). In Enterprise, the Third Circuit established a non-exhaustive list of factors to
determine whether a party is an employer: whether the alleged employer has “(1) authority to hire
and fire employees; (2) authority to promulgate work rules and assignments, and set conditions of
employment, including compensation, benefits, and hours; (3) day-to-day supervision, including
employee discipline; and (4) control of employee records, including payroll, insurance, taxes, and
the like.” Enterprise, 683 F.3d at 469. The Enterprise court emphasized that while these factors
were useful in determining whether a party was an employer, such a determination “must be based
on a consideration of the total employment situation and the economic realities of the work
relationship.” Id. (quoting Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 147071 (9th Cir. 1983). Under the facts alleged, both the DOH and the OTC appear to be Plaintiff’s
employers within the meaning of the EPA.
11

Defs.’ Mot. to Dismiss Pl.’s SAC Pursuant to Fed. R. 12(b)(6) and Fed. R. 56 (“Defs.’ Supp. Br.”)
17. Put differently, Defendants argue that because Plaintiff alleges that the CSC made the ultimate
decision to assign Plaintiff the title of CSO2, and Defendants merely adhered to this decision,
Plaintiff cannot assert that Defendants “discrimate[d] . . . between employees on the basis of sex.”
See 29 U.S.C.A. § 206(d). Indeed, Defendants claim that the DOH and the OTC cannot be held
responsible, because the DOH and the OTC were bound by statute to obey the CSC’s classification
decisions. 6
In essence, Defendants attempt to trap Plaintiff in a catch-22. According to Defendants, on
the one hand, Plaintiff is unable to bring a claim against the DOH or the OTC because they are not
the agency responsible for classifying him in a position with a lower pay grade, while on the other
hand, Plaintiff is unable to bring a claim against the CSC, the purportedly responsible agency,
because the CSC is not his employer. However, if the Court were to accept Defendants’ position,
it would be patently unfair to litigants, such as Plaintiff, challenging state agencies’ employee
classification decisions. To the contrary, to bring a claim under the EPA, a plaintiff need not allege
discriminatory intent on the part of the employer. Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618, 640 (2007) (The EPA does not require a plaintiff to establish that his employer engaged
in “intentional discrimination.”) (superseded by statute on other grounds); Churchill v. Int’l Bus.
Machs., Inc., Nat’l Serv. Div., 759 F. Supp. 1089, 1096 (D.N.J. 1991) (“[T]he Equal Pay Act . . .
creates a type of strict liability in that no intent to discriminate needs to be demonstrated.”). Instead,
a plaintiff need only plead that “employees of the opposite sex were paid differently for performing

6

Pursuant to New Jersey statute, the CSC is a separate entity within the State of New Jersey, whose
duties are “to ensure efficient public service for state, county, and municipal government,”
including “broad reclassification powers.” See In re Johnson, 215 N.J. 366, 376 (N.J. 2013).
12

‘equal work’—work of substantially equal skill, effort and responsibility, under similar working
conditions.” Stanziale, 200 F.3d at 107. Thus, the employer need not have made the classification
itself, but rather, it would be liable under the EPA, barring some affirmative defense, simply for
paying employees of opposite sexes differently for performing equal work.
Here, Plaintiff has successfully alleged the elements of a prima facie case against
Defendants under the EPA – Plaintiff has alleged that Defendants paid him differently from his
female coworkers for performing equal work. Although the fact that the CSC determined
Plaintiff’s classification may have bearing on Defendants’ affirmative defenses to Plaintiff’s EPA
claim, it is certainly no obstacle to Plaintiff’s prima facie case. Ultimately, Defendants are the
entities that employ Plaintiff and allegedly pay him a lower salary than his female coworkers.
Therefore, Plaintiff has successfully plead a prima facie case against the DOH and the OTC under
the EPA.
Furthermore, the assertion that Defendants cannot be held responsible for their actions
when they are bound by state law to violate the EPA is no defense to Plaintiff’s claims. See
Brennan v. Bd. of Educ., 374 F. Supp. 817, 831 (D.N.J. 1974) (“The Board’s claim is that it had
to follow the Civil Service Classification System, and that it was thus bound by state law to violate
the Equal Pay Act . . . would be no defense to the violations here.”). Indeed, in promulgating
regulations pursuant to the EPA, the Equal Employment Opportunity Commission has expressly
stated that “compliance with other applicable legislation, [including state law,] will not excuse
violations of the EPA.” 29 C.F.R. § 1620.28. This is because in circumstances where “compliance
with both federal and state regulations is a physical impossibility,” the state law must give way to
the federal law. See Arizona v. United States, 132 S. Ct. 2492, 2501 (2012). Accordingly,

13

Defendants cannot argue that they are not liable for paying their male and female employees
different salaries for performing equal work, simply because the CSC directed them to do so.
Next, Defendants also re-assert an argument raised in their first motion to dismiss —
namely that they have not violated the EPA, because Plaintiff’s salary was determined based on a
bona fide merit system, and not based on his sex. However, as I already explained in my March
10, 2015 Opinion, whether Plaintiff’s classification and salary were determined based on a bona
fide merit system is a question of fact that may not be resolved on a motion to dismiss. Clark, 2015
U.S. Dist. LEXIS 29496, at *11-12. Once a plaintiff has stated a prima facie case by alleging that
his coworkers of the opposite sex were paid differently for performing “equal work,” the burden
shifts to the plaintiff’s employer to demonstrate one of the four affirmative defenses identified in
the EPA: (i) a bona fide seniority system, (ii) a merit system, (iii) a system which measures
earnings by quantity or quality of production, or (iv) a differential based on any factor other than
sex. Stanziale, 200 F.3d at 107. In order to prevail on an affirmative defense, an employer must
“submit evidence from which a reasonable factfinder could conclude not merely that the
employer’s proffered reasons could explain the wage disparity, but that the proffered reasons do
in fact explain the wage disparity.” Id. at 107–08.
In support of their motion to dismiss, Defendants submit records from Plaintiff’s appeals
of his job classification by the CSC, including (1) letters to Plaintiff from the DOH notifying
Plaintiff of the CSC’s decision to classify him as a CSO 2 and their reasoning; (2) documents that
Plaintiff submitted to the CSC in the course of appealing his classification; and (3) administrative
opinions issued by the CSC regarding Plaintiff’s classification. 7 Defs.’ Supp. Br. Exs. F, G, H, L,

7

These documents may be considered on the instant motion to dismiss because they are integral
to the Second Amended Complaint. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
14

M, and N. According to Defendants, these records demonstrate that the CSC’s classification of
Plaintiff as a CSO2 was made pursuant to a bona fide merit system and, moreover, was not made
on the basis of Plaintiff’s sex. Indeed, in both the DOH’s letters to Plaintiff and the CSC’s
administrative opinions, the stated justification for classifying Plaintiff as a CSO2 was that his
“position [did] not rise to the level of a Community Service Officer, 1 Addictions since [his]
position [did] not organize, coordinate, supervise and evaluate all phase’s [sic] of community
treatment, rehabilitation, and prevention education programs for addictions.” Defs.’ Supp. Br. Ex.
F at 3; see also Defs.’ Supp. Br. Ex. H at 2, Ex. L at 4, and Ex. N at 4. Additionally, these
documents indicate that the CSC found Plaintiff’s job duties and responsibilities to be
“significantly descriptive” of the duties assigned to the specification for CSO2. Defs.’ Supp. Br.
Ex. F at 3, Ex. H at 2, Ex. L at 4, and Ex. N at 4.
However, Plaintiff alleges in his Second Amended Complaint that the CSC’s classification
review process was “flawed,” because despite the CSC’s claims that classifications are assigned
based on an employee’s duties, Plaintiff alleges that he was given a different classification from
that of his female coworkers with “substantially equal” duties. SAC at 2-3. Accepting as true
Plaintiff’s allegation that he and his female coworkers had equal duties, it is impossible for
Defendants to assert that Plaintiff and his coworkers were classified solely based on their job
duties. If this were the case, they should have all been assigned the same title. This leaves open
the plausible inference that Plaintiff was classified based on a different metric – his sex. As I

1426 (3d Cir. 1997) (A “document integral to or explicitly relied upon in the complaint may be
considered without converting the motion [to dismiss] into one for summary judgment.”
(quotations omitted)). In that regard, the Second Amended Complaint includes allegations
regarding the process by which the CSC classified Plaintiff and Plaintiff’s subsequent appeals of
these decisions to the CSC. SAC at 1-3. Accordingly, the documentary records of Plaintiff’s
appeals process is can be considered as they are integral to the pleadings.
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explained in my March 10, 2015 Opinion, “whether the classification process is a merit-based
system that qualifies as an affirmative defense under the Act depends on how it was implemented,
and accordingly is a question of fact.” Clark, 2015 U.S. Dist. LEXIS 29496, at *11.Thus, although
the process by which the CSC evaluates employee classifications ostensibly appears to be a meritbased system, not based on sex, under the facts alleged, this system was not implemented in a sexblind manner. Accordingly, this issue is, quite simply, premature at this stage of the proceedings,
as it demands the Court to make factual determinations that are not only ill-suited at this stage, but
prohibited. Rather, an analysis of whether the CSC’s classification process operates as a merit
system under the Equal Pay Act, and whether it was implemented as such in this case, is better
suited to a motion for summary judgment. 8
For the reasons set forth above, Defendants’ motion to dismiss Plaintiff’s EPA claim is
denied. 9
IV.

Motion for Summary Judgment
Finally, Defendants “move to dismiss” the Second Amended Complaint, pursuant to Rule

56, the federal rule governing motions for summary judgment. See Fed. R. Civ. P. 56. Under L.

8

The Court notes that such analysis would require the Court to review evidence as to whether
Plaintiff and his female coworkers are indeed performing “equal work” and the manner by which
his female coworkers were classified, in addition to the CSC’s process in classifying Plaintiff
himself.
9

Defendants also re-assert their argument that the CSC’s classification of Plaintiff as a CSO1 is a
“final administrative decision that can only be appealed to New Jersey’s Appellate Division
pursuant to New Jersey Court Rules 2:2-3(2).” Defs.’ Supp. Br. at 25. However, as I explained in
my December 7, 2015 Opinion, “the EPA does not require a plaintiff to exhaust his administrative
remedies before bringing a claim under the act . . . [and,] [t]herefore, Plaintiff’s failure to appeal
the CSC’s decision in state court does not prevent him from bringing his claims under the EPA in
federal court.” Clark v. State Dep’t of Health Office of Tobacco Control, Civ. No. 12-7763
(FLW)(TJB), 2015 U.S. Dist. LEXIS 163498, at *9 (D.N.J. Dec. 7, 2015) (citations omitted).
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Civ. R. 56.1(a), a party moving for summary judgment must “furnish a statement which sets forth
material facts as to which there does not exist a genuine issue, in separately numbered paragraphs
citing to the affidavits and other documents submitted in support of the motion” (“Rule 56.1
Statement”). L. Civ. R. 56.1(a). Pursuant to this local rule, “[a] motion for summary judgment
unaccompanied by a statement of material facts not in dispute shall be dismissed.” L. Civ. R.
56.1(a); see also Buck Foston’s New Brunswick, LLC v. Cahill, Civ. No. 11-03731(FLW)(TJB),
2013 U.S. Dist. LEXIS 138815, at *21 (D.N.J. Sep. 27, 2013). Here, Defendants have failed to
submit a Rule 56.1 Statement with their motion. Accordingly, insofar as Defendants’ motion can
be construed as a motion for summary judgment, the Court denies the motion without prejudice
for failure to adhere to Local Rule 56.1(a).
V.

Conclusion
In conclusion, Plaintiff’s FLSA claim is DISMISSED with prejudice and Defendants’

motion to dismiss is DENIED as to Plaintiff’s EPA claim. Additionally, insofar as Defendants are
moving for summary judgment, this motion is DENIED without prejudice.

Date: August 12, 2016

/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. District Judge

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