Volpe et al v. Nassau County et al

Filing 13

ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, the Court denies defendants' motion to dismiss with respect to plaintiffs' EPA, NY EPA, and Section 1307 clai ms. The Court grants defendants' motion to dismiss with respect to plaintiffs' Section 1983 claim against Mangano, but denies the motion with respect to the Section 1983 claim against the County defendants. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/3/2013. (Samplin, Ilissa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-cv-2416 (JFB) (AKT)
_____________________

GARY VOLPE, ET AL.,
Plaintiffs,
VERSUS

NASSAU COUNTY,
NASSAU COUNTY POLICE DEPARTMENT,
NASSAU COUNTY CIVIL SERVICE COMMISSION, AND
EDWARD MANGANO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
Defendants.
___________________
MEMORANDUM AND ORDER
January 3, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiffs Gary Volpe, Matthew Sarter,
Wayne Resnick, George Roa, Angelo Muro,
Michael Spae, the estate of Steven Doran,
Thomas Guiry, David Cullen III, Alfred
Thursland, Richard Blanc, Gregory Bartow,
Paul Radzewsky, John Russ, Michael
Mirenda, Joseph Sperber, John Hoffman,
Gerald Houck III, Christopher Brandimarte,
Paul Klecka, Richard Gotterbarn, Matthew
Love, Joseph Bartow, Jr., Lawrence Vetter,
Robert Conti, James Delahunty, Steven
White, Scott Kramer, Kenneth Blum, and
Dennis
Biancanello
(collectively,
“plaintiffs”) commenced this action on
behalf of themselves and all other males
similarly situated, against Nassau County,
the Nassau County Police Department, the
Nassau County Civil Service Commission

(“County defendants”), and Edward
Mangano (“Mangano”) in his individual and
official capacities as Nassau County
Executive (collectively, “defendants”).
Plaintiffs alleged wage discrimination under
the Equal Pay Act, 29 U.S.C. § 206(d) et
seq. (the “EPA”), the New York Equal Pay
Act New York Labor Law § 194 et seq. (the
“NY EPA”), and Nassau County
Government Law section 1307 (“Section
1307") against the County defendants and
violations of their constitutional rights
pursuant to 42 U.S.C. § 1983 (“Section
1983") against all defendants.
Specifically, plaintiffs claim that the
County defendants violated plaintiffs’ rights
under the EPA, the NY EPA, and Section
1307 by paying them wages lower than the
wages paid to women performing

involvement in the unconstitutional conduct
alleged.

substantially similar work. Plaintiffs also
claim that defendants’ failure to provide
plaintiffs with compensation correspondent
to that of their female counterparts
constitutes an ongoing constitutional
violation. In essence, plaintiffs allege that, in
an attempt to correct an alleged pay
disparity based upon gender between female
Police Communication Operators (“PCOs”)
and Police Communication Operator
Supervisors (“PCOSs”) in the Nassau
County Police Department and male Fire
Communication Technicians (“FCOs”) and
Fire Communication Technician Supervisors
(“FCOSs”) in the Nassau County Fire
Department – which was resolved as part of
the settlement of a separate lawsuit in this
District – the defendants have improperly
instituted a pay disparity among PCOs and
PCOSs, where males in those jobs make less
money than females in the exact same jobs.

For the reasons set forth below, the
Court denies defendants’ motion with
respect to plaintiffs’ EPA, NY EPA, and
Section 1307 claims, as well as the Section
1983 claim against the County defendants.
In particular, the complaint alleges the
following: (1) as a result of settlement
money (in the form of backpay and lump
sum payments) paid by Nassau County to
female PCOs and PCOSs in connection with
the lawsuit entitled Ebbert v. Nassau
County, 05-cv-5445 (AKT), plaintiffs, who
are male PCOs and PCOSs, make less
money than female PCOs and PCOSs based
solely on gender; (2) the male PCOs and
PCOSs have the same titles and same job
responsibilities as the female PCOs and
PCOSs; and (3) the jobs of male PCOs and
PCOSs are performed under the same
working conditions as the jobs of female
PCOs and PCOSs. Given these allegations,
plaintiffs have stated a plausible claim under
the EPA, the NY EPA, and Section 1307
against the County defendants that survives
a motion to dismiss.

Defendants have moved to dismiss
plaintiffs’ complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil
Procedure. Defendants argue that plaintiffs’
EPA claims should be dismissed on the
following grounds: (1) plaintiffs’ claims are
untimely; (2) plaintiffs failed to establish a
prima facie case of wage discrimination; and
(3) defendants did not engage in any
discriminatory act giving rise to the wage
disparity alleged. As to plaintiffs’ Section
1307 claim, defendants contend that Section
1307 does not govern the type of conduct
that forms the basis of plaintiffs’ complaint.
Finally, defendants move to dismiss
plaintiffs’ Section 1983 claim with respect
to the County defendants on the grounds that
(1) the claim is untimely, and (2) plaintiffs
failed to allege a “policy or custom” of
intentional discrimination, and with respect
to Mangano on the grounds that (1) the
claim against him is redundant of the claim
against the County defendants, and (2) he
had no personal knowledge of or

Defendants’ arguments for dismissal at
this stage are unpersuasive. First, defendants
argue that plaintiffs’ EPA claims are barred
by the statute of limitations. However, since
the alleged discriminatory pay practice at
issue here (between the male and female
PCOs and PCOSs) began at the time the
Ebbert settlement was implemented in
December 2011 and plaintiffs filed their
complaint less than one year later, plaintiffs’
EPA claims are clearly timely. Second,
although the County defendants contend that
no plausible claim can exist because the
alleged unequal pay based on gender was
the result of a court-approved settlement
agreement, the Court disagrees. The mere
fact that an alleged discriminatory pay
structure is the product of a voluntary
2

I. BACKGROUND

settlement by an employer with other parties
in a separate lawsuit, even with Court
approval, does not automatically immunize
the employer from liability under the
discrimination laws. Nothing in the language
of the EPA or other applicable statutes, or in
the case authority interpreting those
provisions, suggests that such a zone of
employer immunity exists. To the contrary,
it is clear under the law that employers,
whether as part of a voluntary settlement in
a lawsuit or otherwise, cannot discriminate
under the EPA. Thus, the fact that the
alleged pay disparity based upon gender was
triggered by the Ebbert settlement does not
preclude plaintiffs from asserting a plausible
EPA claim. For the same reasons, plaintiffs’
claims under Section 1307 and Section 1983
also survive a motion to dismiss. Although
defendants argue that Section 1307 does not
apply because it does not reference backpay
or step adjustments awarded from litigation,
the language of “equal pay” in the statute
certainly encompasses backpay and step
adjustments regardless of whether such pay
was prompted by litigation. Similarly, as to
Section 1983, plaintiffs have alleged that the
unequal pay policy based on gender was
instituted on a class-wide basis by the
County itself, as a party in the Ebbert
lawsuit, thus stating a plausible claim of
municipal policy under Monell v.
Department of Social Services, 436 U.S. 658
(1978).

A. Factual Background
The following facts are taken from the
complaint,
including
documents
incorporated by reference in the complaint,
as well as from information of which this
Court may take judicial notice.1 These facts
are not findings of fact by the Court. Instead,
the Court assumes these facts to be true for
purposes of deciding the pending motion to
dismiss, and will construe them in a light
most favorable to plaintiff, the non-moving
party.
1. Nassau County Positions and Salary
Grades
Plaintiffs are residents of Nassau or
Suffolk County who are employed by the
Nassau County Police Department, an
1

For purposes of this recitation of facts, the Court
takes judicial notice of documents filed in Ebbert v.
Nassau County, 05-cv-5445 (AKT), a separate
federal proceeding directly related to matters at issue
in this case. See World Wrestling Entm’t, Inc. v.
Jakks Pac., Inc., 425 F. Supp. 2d 484, 508 n.16
(S.D.N.Y. 2006) (noting that “the Court properly can
take judicial notice of the filings and [an] Order in
the Connecticut state court action” (citing Green v.
Warden, U.S. Penitentiary, 699 F.2d 364, 369 (7th
Cir. 1983) (“Federal courts may also take notice of
proceedings in other courts, both within and outside
of the federal judicial system, if the proceedings have
a direct relation to matters at issue.”))); Washington
v. U.S. Tennis Ass’n, 290 F. Supp. 2d 323, 326
(E.D.N.Y. 2003) (stating that courts are “permitted to
take judicial notice of court documents from previous
actions”). The Court does so “not for the truth of the
matters asserted in the [Ebbert] litigation, but rather
to establish the fact of such litigation and related
filings.” Int’l Star Class Yacht Racing Ass’n v.
Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.
1998) (citation and quotation marks omitted).
However, the Court does take judicial notice of the
contents of the Ebbert court’s Final Order and
Judgment, entered December 22, 2011, because
though not attached to the complaint, it was
“incorporated in [the complaint] by reference.” Roth
v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

Finally, the Court agrees that the claims
against County Executive Mangano (which
are only brought pursuant to Section 1983)
should be dismissed because (1) claims
against him in his official capacity are
duplicative of the claims against the County,
and (2) other than speculation and
conclusory assertions, plaintiffs have failed
to allege a plausible claim of personal
involvement by Mangano in the alleged
discriminatory acts.
3

were first elevated in October 2001,
“vertical upgrades” – steps or increases in
pay within a salary grade based on seniority
– were not concurrently given. (Id. ¶ 48.) As
a result, PCOs and PCOSs were paid
“between $1,500 and $10,000 less than
FCTs and FCTSs of equal seniority for
performing jobs of equivalent skill, effort,
and responsibility.” (Id. ¶ 51-52.)

agency of Nassau County, as Police
Communication Operators (“PCOs”) and/or
Police Communication Operator Supervisors
(“PCOSs”). The duties of a PCO include
“receiving telephone calls placed on the
Nassau County 911 emergency system,
deciding on the appropriate response to each
call, and dispatching appropriate aid.”
(Compl. ¶ 40.) There are approximately 172
PCOs and PCOSs in the Nassau County
Police Department, 90% of which are
female. (Id. ¶ 41.) Nassau County also
employs Fire Communication Technicians
(“FCTs”)
and
Fire
Communication
Technician Supervisors (“FCTSs”), within
the Nassau County Fire Department. FCTs
and FCTSs perform tasks that are
substantially similar to those performed by
PCOs and PCOSs. (Id. ¶ 52.) However, all
FCTs and FCTSs are male. (See id. ¶ 53.)

2. Ebbert v. Nassau County
In November of 2005, female PCOs
and PCOSs initiated a class action in federal
court against Nassau County, the Nassau
County Police Department, the Nassau
County Civil Service Commission, and
Thomas R. Suozzi, the County Executive
(collectively, “Ebbert defendants”). See
Ebbert, 05-cv-5445. The all-female plaintiff
class (“Ebbert plaintiff class”) alleged
discrimination on the basis of gender.
Specifically, the Ebbert plaintiff class
alleged that it had been paid less and
continued to be paid less, because of the
absence of “vertical upgrades” for PCOs and
PCOSs in 2001, than male FCTs and FCTSs
of equal seniority performing substantially
similar work. (See Compl. ¶ 53.) Male PCOs
and PCOSs – the plaintiffs in this matter –
did not intervene in the Ebbert action.

The Nassau County Civil Service
Commission, an agency of Nassau County,
is responsible for classifying county
positions and establishing compensation
rates for county employees. (Id. ¶ 35.) Prior
to October 2001, the Commission ranked
PCOs at a salary grade 7 and PCOSs at a
salary grade 10. (Id. ¶ 46.) In October 2001,
PCOs were elevated to a salary grade 9 and
PCOSs were elevated to a salary grade 11.
(Id. ¶ 47.) By contrast, both at and before
October 2001, the Commission ranked FCTs
at a salary grade 10 and FCTSs at a salary
grade 12. (Id. ¶ 49.) On May 11, 2005, the
Nassau County Legislature approved
elevating PCOs to a salary grade 10 and
PCOSs to a salary grade 12, thereby
equalizing them in pay grade with FCTs and
FCTSs, respectively. (Id. ¶ 50.)

The Ebbert litigation was settled for
seven million dollars, excluding attorneys’
fees, in December of 2011. (Id. ¶ 55.) The
Ebbert court approved a settlement with the
following relevant provisions:
a. Within thirty (30) days of this Final
Order, Defendants shall make back pay
payments to each class member in the
amount calculated by the Courtappointed expert.

Despite this equalization of salary
grades, PCOs and PCOSs continued to be
paid less than FCTs and FCTSs of
comparable seniority. (Id. ¶ 52.) This
alleged disparity continued to exist because,
when the salary grades of PCOs and PCOSs

b. Within thirty (30) days of the entry of
this Final Order, Defendants shall pay to

4

class of female PCOs and PCOSs, pursuant
to the settlement agreement discussed infra,
are, for all intents and purposes, the same
defendants in this case.

each individually named plaintiff twenty
thousand ($20,000) dollars.
c. Within thirty (30) days of the entry of
this Final Order, Defendants shall set
aside fifty thousand ($50,000) dollars to
cover the costs of administration of the
Settlement Agreement.

Plaintiffs allege that the monies
defendants paid to the Ebbert plaintiff class
made female PCOs and PCOSs higher paid
than plaintiffs, the male counterparts of the
female PCOs and PCOSs. (Compl. ¶¶ 5658.) Defendants failed to issue comparable
backpay, lump sum payments, and/or other
compensation to plaintiffs, despite the fact
that plaintiffs perform the same work as
their female counterparts who received said
remunerations. (Id.) As such, plaintiffs claim
that defendants have and continue to
unlawfully discriminate against them on the
basis of gender.

(Id. ¶ 54.) Thus, each of the female PCOs
and PCOSs in the Ebbert plaintiff class was
awarded backpay and lump sum payments
as a result of the settlement. According to
plaintiffs in this case, in addition to backpay
and lump sum payments, the Ebbert plaintiff
class also received increased pension and
retirement benefits. (Aff. of Gary Volpe
¶ 8.)2
3. Alleged Discriminatory Impact of
Defendants’ Practices

B. Procedural History

The Court notes that the only difference
between the Ebbert defendants and the
defendants in this case is the fact that a
different individual was sued as County
Executive (due to a change in position
between the two lawsuits). Thus, the
defendants that paid the Ebbert plaintiff

Plaintiffs filed this action on May 15,
2012. Defendants filed a motion to dismiss
on July 19, 2012. Plaintiffs submitted their
opposition on August 20, 2012, and
defendants replied on September 6, 2012.
Oral argument was held on December 19,
2012. The Court has fully considered the
arguments and submissions of the parties.

2

Because plaintiffs mentioned that the Ebbert
plaintiff class received increased pension and
retirement benefits post-settlement for the first time
in an affidavit appended to their opposition papers –
an affidavit that plaintiffs “did not attach . . . to the
complaint, or refer to [] therein” – the Court will not
consider the assertion for purposes of the instant
motion. Wendel v. New York, 574 F. Supp. 2d 290,
296 (E.D.N.Y. 2008) (declining to consider an
affidavit that was appended to plaintiff’s opposition
papers, but not attached to or referred to in the
complaint, on a motion to dismiss). As discussed
infra, plaintiffs’ claims against the County defendants
survive a motion to dismiss in connection with the
alleged disparity based upon backpay and lump sum
payments, apart from any disparity in pension and
retirement benefits. However, if plaintiffs wish to
also add these allegations, the Court in its discretion
will permit plaintiffs to do so under Rule 15(a) of the
Federal Rules of Civil Procedure.

II. STANDARD OF REVIEW
In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
5

New York State Division of Human Rights
(“NYSDHR”), in an unrelated matter, and
(2) the opinion and decision of the
NYSDHR concerning the charges filed by
the Ebbert plaintiff class. The Court notes
that in adjudicating this motion, it may take
judicial notice of documents in the public
record, which includes records and reports
of administrative bodies, i.e., the NYSDHR.
See Colquitt v. Xerox Corp., No. 05-CV6405, 2010 WL 3943734, at *1 n.2
(W.D.N.Y. Oct. 7, 2010) (“The Court may
also consider documents of which judicial
notice may be taken, including public
records of the NYSDHR and EEOC.”);
Thomas v. Westchester Cnty. Health Care
Corp., 232 F. Supp. 2d 273, 276 (S.D.N.Y.
2002) (“Even if the [administrative]
Transcript and Report were not integral,
such documents could still be considered by
the Court because the Court may take
judicial notice of the records of state
administrative procedures, as these are
public records, without converting a motion
to dismiss to one for summary judgment.”
(citation and internal quotation marks
omitted)). Thus, the Court will take judicial
notice of the two exhibits put forth by
defendants simply “to establish the fact of
such litigation and related filings” and/or to
“ascertain the legal nature of the claim[s]”
brought in those actions, but “not to support
any factual determination in [this]
subsequent litigation.” Liberty Mut. Ins. Co.
v. Rotches Pork Packers, Inc., 969 F.2d
1384, 1388-89 (2d Cir. 1992).3

F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Court instructed
district courts to first “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679 (explaining
that though “legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations”). Second,
if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to
relief.” Id. A claim has “facial plausibility
when the plaintiff pleads factual content that
allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged. The plausibility
standard is not akin to a ‘probability
requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting and citing
Twombly, 550 U.S. at 556-57 (internal
citation omitted)).
In adjudicating a motion to dismiss, a
court is “normally required to look only to
the allegations on the face of the complaint.”
Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.
2007). Here, defendants ask the Court to
“take judicial notice” of – and thus consider
for purposes of this motion – two exhibits
appended to an attorney declaration
submitted in support of their motion to
dismiss: (1) a complaint filed by plaintiff
Volpe with an administrative agency, the

3

The Court notes that County defendants ask the
Court to take judicial notice of these two exhibits to
support their statute of limitations argument –
namely, to ascertain the date upon which they believe
the statute of limitations for plaintiffs’ EPA claims
began to run. As discussed supra, while the Court
takes judicial notice of these documents, the Court
rejects County defendants’ statute of limitations
argument for the reasons set forth in this opinion.

6

III. DISCUSSION4

[n]o employer . . . shall discriminate . . .
between employees on the basis of sex
by paying wages to employees . . . at a
rate less than the rate at which he pays
wages to employees of the opposite sex .
. . 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 . . . .

A. Plaintiffs’ EPA Claims
Plaintiffs allege that the County
defendants discriminated against them, in
violation of the EPA and the NY EPA, by
paying them wages lower than those paid to
similarly situated females for substantially
equal work. County defendants move to
dismiss plaintiffs’ EPA claims on the
following grounds: (1) plaintiffs’ EPA
claims are time barred by the statute of
limitations; (2) plaintiffs cannot establish a
prima facie case of wage discrimination
under the EPA; and (3) because the higher
payments to female PCOs and PCOSs were
made pursuant to a court-approved
settlement, County defendants did not
engage in an unlawful discriminatory act in
violation of the EPA when making such
payments. For the reasons set forth below,
the Court denies defendants’ motion to
dismiss with respect to plaintiffs’ EPA
claims.5

Id. § 206(d)(1). “To prove a violation of the
EPA, a plaintiff must first establish a prima
facie case of discrimination by showing: i)
the employer pays different wages to
employees of the opposite sex; ii) the
employees perform equal work on jobs
requiring
equal
skill,
effort,
and
responsibility; and iii) the jobs are
performed
under
similar
working
conditions.” Belfi v. Prendergast, 191 F.3d
129, 135 (2d Cir. 1999) (internal citation
and quotation marks omitted).

1. Applicable Law
Section 206(d) of the EPA prohibits
employers from discriminating amongst
employees on the basis of sex. 29 U.S.C.
§ 206(d). Under the EPA,

Once a plaintiff has made out a prima
facie case of discrimination under the EPA,
“the burden of persuasion shifts to the
defendant to show that the wage disparity is
justified by one of the affirmative defenses
provided under the Act: ‘(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.’”
Id. at 136 (quoting 29 U.S.C. § 206(d)(1)).
To successfully establish the last defense, a
“factor other than sex”, the employer “must
also demonstrate that it had a legitimate
business reason for implementing the
gender-neutral factor that brought about the
wage differential.” Id. Once the employer

4

Although defendants separately move for dismissal
of the claims brought against the Nassau County
Civil Service Commission, (Defs.’ Mem. of Law in
Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at 11), all
of the arguments for the Civil Service Commission
are the same as those for the County of Nassau.
Thus, the Court treats the arguments together for
purposes of this motion, and the motion is denied as
to the Civil Service Commission for the same reasons
it is denied as to the County itself.
5
Since “[c]laims for violations of the Equal Pay Act
and the New York State Equal Pay Law may be
evaluated under the same standard,” Rose v.
Goldman, Sachs & Co., 163 F. Supp. 2d 238, 243
(S.D.N.Y. 2001), the Court addresses defendants’
motion to dismiss with respect to plaintiffs’ EPA
claim and plaintiffs’ NY EPA claim together.

7

has established one of the enumerated
affirmative defenses, the plaintiff may
counter the defense “by producing evidence
that the reasons the defendant seeks to
advance are actually a pretext for sex
discrimination.” Id.

Thus, the relevant inquiry for statute of
limitations purposes is when the disparity in
pay between plaintiffs and their female
counterparts occurred, not the timing of the
disparity in pay between plaintiffs and FCTs
and FCTSs.

A claim under the EPA “must be
commenced within two years of its accrual,
or three years if the violation is willful.”
Pollis v. New Sch. for Soc. Research, 132
F.3d 115, 118 (2d Cir. 1997).

County defendants contend that the
statute of limitations began to run back in
2005, when plaintiffs allegedly learned that
their pay was not equal to that of FCTs and
FCTSs. However, at that time, male and
female PCOs and PCOSs were receiving the
same amount of pay. It was not until
December 2011, when the Ebbert settlement
was executed, that any kind of pay
differential between male and female PCOs
and PCOSs occurred.7 See Klask v. Nw.
Airlines, Inc., No. 4-86-352, 1989 WL
308010, at *4 (D. Minn. Aug. 28, 1989)
(finding that the statute of limitations for
male cabin attendants’ EPA claim began to
run when the pay differential between the
male plaintiffs and female cabin attendants
doing comparable work occurred, which was
when defendant made backpay payments to
female cabin attendants, as required under
the final judgment in a separate case – to
equalize the pay between female cabin
attendants and male pursers doing

2. Analysis
a. Statute of Limitations
County defendants contend that
plaintiffs’ EPA claims are barred by either
the two or three-year statute of limitations
applicable to such claims. (Defs.’ Mem. at
5-6.) In support of their argument, County
defendants explain that plaintiffs would
have known that their pay was not equal to
that of FCTs and FCTSs back in 2005, if not
earlier, when all PCOs and PCOSs were
equalized in salary grade with FCTs and
FCTSs but were not given comparable
“vertical upgrades.” (Id. at 6.) Yet, plaintiffs
did not bring suit alleging that County
defendants violated the EPA until 2012,
approximately seven years later.

FCTSs had a higher salary grade than them prior to
2005, which was the exact issue in Ebbert.” (Defs.’
Mem. at 5.) However, the Court does not share
County defendants’ interpretation of plaintiffs’
complaint, and therefore declines to analyze
plaintiffs’ EPA claims accordingly.
7
The Court notes that the Ebbert settlement
agreement, setting forth the backpay and lump sum
payments defendants were to make to the Ebbert
plaintiff class, was executed on December 22, 2011,
but that the payments themselves would have been
officially tendered at a later date. The Court need not
decide whether the statute of limitations for
plaintiffs’ EPA claims began to run on the date the
settlement was executed or on the later date when the
payments pursuant to the settlement agreement were
made because, under either scenario, plaintiffs’ EPA
claims were brought within the applicable statute of
limitations period.

As a preliminary matter, the Court notes
that County defendants’ statute of
limitations argument mischaracterizes the
basis of plaintiffs’ EPA claims. Plaintiffs’
EPA claims are premised on the disparity in
pay between male PCOs and PCOSs and
female PCOs and PCOSs; they are not based
on any comparison to the pay provided to
FCTs and FCTSs. (See Compl. ¶¶ 56-58.)6
6

The Court has considered the following argument
put forth by County defendants: “Despite what the
pleadings suggest, Plaintiffs’ complaint is not that the
female PCOs and PCOSs are higher paid than the
male PCOs and PCOSs but rather that the FCTs and

8

comparable work under similar conditions –,
that it did not similarly provide to the male
cabin attendants). Plaintiffs subsequently
filed suit less than one year later.
Accordingly, plaintiffs’ EPA claim is timely
whether a two or three-year statute of
limitations applies, and defendants’ motion
to dismiss plaintiffs’ EPA claims fails on
this ground.8

attendants had brought a separate, prior
litigation against Northwest Airlines,
alleging that the Airline discriminated
against them by paying them less than male
pursers who performed equal work under
similar conditions. Id. at *1-2. Pursuant to
the final judgment in that litigation
(“Laffy”), in May 1985, Northwest Airlines
began paying female cabin attendants
backpay awards for salary covering the
1970-76 period and other benefits covering
the 1970-78 period. Id. at *3. Male cabin
attendants performing similar work, under
similar conditions, and during the same time
period as the female cabin attendants who
were awarded backpay, subsequently sued
Northwest Airlines, claiming that the
Airline’s failure to pay them the amounts it
paid the female cabin attendants in 1985,
covering the 1970-78 time period,
constituted unlawful wage discrimination
under the EPA. Id. In evaluating whether the
plaintiffs established the first prong of their
prima facie case, the Klask court explained
that “[t]he higher rate of pay occurred in
1985 when a number of women cabin
attendants received backpay payments made
pursuant to the final judgment in Laffey.” Id.
Thus, the court found that a showing that an
employer paid backpay payments to
employees of one gender and not the other is
enough to satisfy the first prong of a prima
facie case of wage discrimination. Id. This
Court agrees.

b. Plaintiffs’ Prima Facie Case
County defendants also move to dismiss
plaintiffs’ EPA claims on the grounds that
plaintiffs have failed to establish a prima
facie case of wage discrimination because
male and female PCOs and PCOSs of equal
seniority are currently paid the same regular
wages. (Defs.’ Mem. at 4.) County
defendants argue that, although backpay was
issued to female PCOs and PCOSs “as part
of a court-approved settlement[,] . . . [the]
settlement did not result in a change in grade
or salary for the female PCOs and PCOSs.”
(Id.) As such, County defendants claim that
plaintiffs cannot satisfy the first prong of
their prima facie case – showing that the
employer pays different wages to employees
of the opposite sex – and that their EPA
claim should therefore be dismissed.
The Court disagrees with County
defendants’ contention that a showing that
backpay payments were made to employees
of one gender, and not the other, fails to
satisfy the first prong of a prima facie case
under the EPA. In Klask v. Northwest
Airlines, Inc., the District Court of
Minnesota considered this very question.
1989 WL 308010, at *3. Female cabin

As to the second and third prongs of
plaintiffs’ prima facie case – showing that
the male and female employees perform the
same jobs under similar working conditions
–, plaintiffs are alleged to have held the
same titles, worked under the same
conditions, and had the same responsibilities
as their female counterparts, female PCOs
and PCOSs. (See Compl. ¶¶ 40-41, 56.) As
such, County defendants do not contend, nor
can they credibly contend, that plaintiffs
have failed to properly allege the second and

8

The NY EPA has a longer, six-year statute of
limitations. Patrowich v. Chem. Bank, 98 A.D.2d
318, 325 (1st Dep’t 1984). Because the Court has
determined that plaintiffs brought their EPA claims
within the shorter statute of limitations applicable to
federal EPA claims, plaintiffs’ state EPA claim must
also be timely.

9

differential at issue herein was a direct result
of [a] . . . sex discrimination action, it was
for all intents and purposes based on sex.”
Meegan, 1980 WL 18660, at *4. Thus, the
fact that the alleged unequal pay structure
was part of a voluntary, court-approved
settlement in the Ebbert case does not mean
that the Court can preclude an otherwise
plausible claim under the “factor other than
sex” defense. Nothing in the language of the
EPA, or in any case authority interpreting
that statute, suggests that such a pocket of
immunity exists for employers. To the
contrary, the language of Section 206(d)
prohibits unequal pay based upon gender,
and provides no exception if the genderbased unequal pay structure arose from a
voluntary settlement by the employer of
another lawsuit.

third prongs of their prima facie case. Thus,
the Court holds that plaintiffs have
sufficiently alleged a plausible, prima facie
case of County defendants’ violation of the
EPA to survive a motion to dismiss.
c. Defendants’ Alleged Defense
County defendants also claim that,
because backpay and lump sum payments to
female PCOs and PCOSs were made in
accordance with a settlement, defendants did
not engage in a discriminatory act. (See
Defs.’ Mem. at 5.) Essentially, the County
defendants claim that they should be
immunized or exempt from liability under
the EPA as a matter of law because
payments made to female employees –
payments that were not made to similarly
situated male employees – were made
pursuant to the requirements of a courtapproved settlement agreement.

County defendants also contend that
they “were not legally bound to issue back
pay to (and/or adjust steps of) anyone other
than the class members” in Ebbert. (Defs.’
Mem. at 5.) The Court agrees that, pursuant
to the terms of the Ebbert settlement, the
County defendants had no legal obligation to
remit backpay or other types of payments to
the male plaintiffs in this case. However,
because County defendants were under no
obligation to make backpay or other types of
payments to any PCOs or PCOSs when they
chose to remit such payments to female
PCOs or PCOSs to settle the Ebbert case,
once they elected to pay the females, those
payments had to be applied to both sexes
equally. See Bd. of Regents v. Dawes, 522
F.2d 380, 384 (8th Cir. 1975) (holding that
“when a University establishes and
effectuates a formula for determining a
minimum salary schedule for one sex . . ., it
is a violation of the Equal Pay Act to refuse
to pay employees of the opposite sex the
minimum required under the formula”); see
also Meegan, 1980 WL 18660, at *4
(adopting the reasoning of Dawes and
explaining that because the minimum pay

Although not explicitly stated as such,
the Court reads County defendants’
argument as a “factor other than sex”
defense to the wage disparity between male
and female PCOs and PCOSs. However, this
Court holds that “the fact that the payments
were made pursuant to a[] [settlement] does
not justify the unequal pay.” Klask, 1989
WL 308010, at *4-5 (considering the issue
of whether male cabin attendants are entitled
to backpay that was awarded to female cabin
attendants and rejecting defendant’s “factor
other than sex” defense – that the backpay
was awarded pursuant to a final judgment
entered by a court in another litigation – as a
matter of law); see also Meegan v. City of
Buffalo, No. CIV-79-467, 1980 WL 18660,
at *3-4 (W.D.N.Y. July 24, 1980) (holding
that compliance with a state court order in a
prior sex discrimination case was an invalid
“factor other than sex” defense under the
EPA to defendant paying females more than
males performing substantially similar
work). Moreover, because the “wage
10

As discussed infra, plaintiffs’ claims of
wage discrimination are premised on the
disparity in pay between male and female
PCOs and PCOSs, not between PCOs and
PCOSs and FCTs and FCTSs. Thus, County
defendants’ contention that any alleged
Section 1307 violation was cured on May
11, 2005, when the salary grades of PCOs
and PCOSs and FCTs and FCTSs were
equalized, is inapposite. The Section 1307
violation alleged by plaintiffs occurred as a
result of the Ebbert settlement, when County
defendants agreed to make payments to
female PCOs and PCOSs and did not
likewise remit such payments to male PCOs
and PCOSs.

for female employees was established by
defendants as a result of a prior state court
action and that same minimum was not
applied to males performing similar work,
defendants violated the EPA). Allowing
County defendants to maintain the wage
differential caused by their compliance with
the Ebbert settlement “would, at a
minimum, contravene the spirit of th[e]
[defenses] section and of the Equal Pay Act
in general.” Meegan, 1980 WL 18660, at *4.
In sum, plaintiffs both brought their EPA
claims within the applicable statute of
limitations periods and have sufficiently
alleged a prima facie case of wage
discrimination under the EPA. The fact that
the alleged disparity in pay was prompted or
created as part of a voluntary settlement of
another lawsuit involving the employer does
not automatically bar the EPA claim under
the “factor other than sex” defense.
Therefore, viewing the facts alleged in the
complaint in the light most favorable to
plaintiffs, the Court concludes that plaintiffs
have sufficiently pled plausible EPA
discrimination claims that survive a motion
to dismiss.

County defendants also claim that
because “[b]ack pay awarded and/or step
adjustments as a result of litigation and/or
settlement is not provided for in Section
1307”, County defendants did not violate
Section 1307 when they settled the Ebbert
case. (Id.) Section 1307 provides that the
Nassau County Civil Service Commission
shall “standardiz[e] salaries and conditions
of employment in all departments, offices,
institutions and agencies of the county, so
that, as near as may be, equal pay may be
given for equal work.” (emphasis added). As
discussed infra, backpay may be considered
a form of payment for purposes of
determining whether an equal pay violation
has occurred. Plaintiffs have pled that, due
to the Ebbert settlement, their female
counterparts received backpay payments that
they did not similarly receive. (Compl. ¶ 5657.) Thus, in viewing the facts alleged in the
complaint in the light most favorable to
plaintiffs, the Court concludes that plaintiffs
have sufficiently pled a plausible Section
1307 claim that survives a motion to
dismiss.

B. Plaintiffs’ Section 1307 Claim
Plaintiffs allege that, by making
payments required under the Ebbert
settlement to female PCOs and PCOSs, and
not to male PCOs and PCOSs, County
defendants violated Section 1307 of the
Nassau
County
Government
Laws.
Defendants move to dismiss plaintiffs’
Section 1307 claim on the ground that
Section
1307
“only
governs
job
classification and standardization of salaries
and conditions of employment”, and
defendants complied with Section 1307 on
May 11, 2005, when PCOs and PCOSs were
equalized in grade with FCTs and FCTSs.
(Defs.’ Mem. at 8.)

11

and cannot rest on respondeat superior.”
Hernandez v. Keane, 341 F.3d 137, 144 (2d
Cir. 2003). Supervisor liability can be shown
in one or more of the following ways: “(1)
actual
direct
participation
in
the
constitutional violation, (2) failure to
remedy a wrong after being informed
through a report or appeal, (3) creation of a
policy or custom that sanctioned conduct
amounting to a constitutional violation, or
allowing such a policy or custom to
continue, (4) grossly negligent supervision
of subordinates who committed a violation,
or (5) failure to act on information
indicating that unconstitutional acts were
occurring.” Id. at 145 (citation omitted).

C. Plaintiffs’ Section 1983 Claim
Plaintiffs allege that defendants have and
continue to intentionally discriminate
against plaintiffs in violation of their
constitutional rights. Defendants move to
dismiss plaintiffs’ Section 1983 claim with
respect to the County defendants on the
following grounds: (1) plaintiffs’ claim is
barred by the applicable statute of
limitations; and (2) plaintiffs failed to
demonstrate that the alleged constitutional
violation was caused by a policy or custom
of the County defendants. Additionally,
defendants move to dismiss plaintiffs’
Section 1983 claim with respect to Mangano
on the following grounds: (1) in terms of the
claim against Mangano in his official
capacity, the claim is redundant of the claim
against Nassau County; and (2) in terms of
the claim against Mangano in his individual
capacity, Mangano had no involvement or
personal knowledge of the alleged acts.

As to municipal entities, the Supreme
Court has explained that a municipal entity
may be held liable under Section 1983
where a plaintiff demonstrates that the
constitutional violation complained of was
caused by a municipal “policy or custom.”
Monell, 436 U.S. 658, 694 (1978). “The
policy or custom need not be memorialized
in a specific rule or regulation.” Kern v. City
of Rochester, 93 F.3d 38, 44 (2d Cir. 1996)
(citing Sorlucco v. N.Y.C. Police Dep’t, 971
F.2d 864, 870 (2d Cir. 1992)). Instead,
discriminatory practices of city officials that
are “persistent and widespread” can be “so
permanent and well settled as to constitute a
custom or usage with the force of law, and
thereby generate municipal liability.”
Sorlucco, 971 F.2d at 870-71 (citing Monell,
436 U.S. at 691) (internal quotation marks
omitted). Moreover, a policy, custom, or
practice of the entity may be inferred where
‘“the municipality so failed to train its
employees as to display a deliberate
indifference to the constitutional rights of
those within its jurisdiction.’” Patterson,
375 F.3d at 226 (quoting Kern, 93 F.3d at
44).

1. Applicable Law
To prevail on a claim under Section
1983, a plaintiff must show: (1) the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
its laws, (2) by a person acting under the
color of state law. 42 U.S.C. § 1983. Section
1983 does not itself create substantive
rights; it offers “a method for vindicating
federal rights elsewhere conferred.”
Patterson v. Cnty. of Oneida, 375 F.3d 206,
225 (2d Cir. 2004).
“It is well settled in this Circuit that
personal involvement of defendants in
alleged constitutional deprivations is a
prerequisite to an award of damages under
Section 1983.” Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994) (citation and quotation
marks omitted). In other words, “supervisor
liability in a § 1983 action depends on a
showing of some personal responsibility,

For Section 1983 actions in New York,
the statute of limitations is three years.
12

a policy or custom of constitutional
deprivation. (Id. at 8-9.) Under Monell,
plaintiffs must show that the County
defendants have a “policy or custom” of
discrimination. 436 U.S. at 694. As the
Second Circuit has explained, “‘the mere
assertion that a municipality has such a
custom or policy is insufficient in the
absence of allegations of fact tending to
support, at least circumstantially, such an
inference.’” Zherka v. City of New York, 459
Fed. App’x. 10, 12 (2d Cir. 2012) (quoting
Zahra v. Town of Southold, 48 F.3d 674,
685 (2d Cir. 1995)).

Eagleston v. Guido, 41 F.3d 865, 871 (2d
Cir. 1994). The limitations period begins to
run, or accrue, “when the plaintiff knows or
has reason to know of the injury which is the
basis of his action.” Pearl v. City of Long
Beach, 296 F.3d 76, 90 (2d Cir. 2002)
(internal citation and quotation marks
omitted).
2. Analysis
a. County Defendants
In moving to dismiss plaintiffs’ Section
1983 claim, County defendants argue that
the claim is barred by the statute of
limitations. In particular, County Defendants
argue that “[a]ny claim pertaining to the
salary grade inequity between the FCTs and
FCTSs and the PCO and PCOSs before the
2005 grade equalization would also be time
barred, as the statute of limitations for
intentional discrimination is one year under
New York law.” (Defs.’ Mem. at 9.)
However, for the same reasons defendants’
statute of limitations argument under the
EPA cannot prevail, this contention under
Section 1983 also fails. Plaintiffs – that is,
the male PCOs and PCOSs – are not
challenging the inequity in their salary as
compared to FCTs or FCTSs; rather, they
are challenging the pay inequality in their
salary as compared to female PCOs and
PCOSs, which was created as a result of the
Ebbert settlement in 2011, not in 2005. As
noted above, the statute of limitations for
Section 1983 actions in New York is three
years. Because plaintiffs’ claim was brought
within three years of the Ebbert settlement,
the event that plaintiffs allege gave rise to
their claim, plaintiffs’ Section 1983 claim
against the County defendants is timely.

In support of their Section 1983 claim,
plaintiffs allege that the practices and
policies of the County defendants have led
to this alleged intentional discrimination
based upon gender in violation of Section
1983. (Compl. ¶ 66.) Specifically, plaintiffs
allege a policy of unequal pay based upon
gender that (1) applies across a class of all
men employed by the Nassau County Police
Department as PCOs and PCOSs, and (2)
was instituted by the County in response to
the settlement of the Ebbert lawsuit, to
which the County itself was a party. These
contentions are sufficient to allege a
discriminatory policy under Monell that
survives a motion to dismiss.9
In sum, the motion to dismiss the
Section 1983 claim against the County
defendants is denied.

9

The Court notes that plaintiffs could also attempt to
demonstrate a policy of discrimination under Section
1983 by not only pointing to this lawsuit, which
alleges a policy of unequal pay based upon gender as
among PCOs and PCOSs, but also the Ebbert
lawsuit, which made the same allegations of
discrimination on the basis of gender by the County
defendants as between PCOs and PCOSs and FCTs
and FCTSs.

The County defendants also set forth
another ground for dismissal of plaintiffs’
Section 1983 claim – that plaintiffs have
failed to allege that County defendants have
13

U.S. at 676) (internal citation and quotation
marks omitted).

b. Mangano
i. Official Capacity

The complaint is devoid of any reference
to actions taken by Mangano in violation of
plaintiffs’ constitutional rights, let alone any
reference
to
Mangano’s
alleged
discriminatory intent. Instead, the complaint
only mentions Mangano in a conclusory
fashion. “It is well-settled that where the
complaint names a defendant in the caption
but contains no allegations indicating how
the defendant violated the law or injured the
plaintiff, a motion to dismiss the complaint
in regard to that defendant should be
granted.” Dove v. Fordham Univ., 56 F.
Supp. 2d 330, 335 (S.D.N.Y. 1999) (quoting
Morabito v. Blum, 528 F. Supp. 252, 262
(S.D.N.Y. 1981)) (internal quotation marks
omitted). In fact, plaintiffs’ opposition
papers make clear that the allegations
against Mangano are based upon speculation
and conjecture. (See Pls.’ Mem. of Law in
Opp’n to Mot. to Dismiss at 14 (“[I]t is hard
to believe that Mangano did not play a
substantial role in not only agreeing to the
settlement but in determining who would be
affected by the settlement.”); see also id. at
15 (“At this time, it is unknown what role
Mr. Mangano played and therefore he
should not be dismissed from the lawsuit
absent discovery into the extent of his
involvement in reaching and approving the
Ebbert settlement.”).)10 Such conjecture and
speculation is not sufficient to state a
plausible claim of individual liability under
Section 1983. Thus, the Court dismisses the

Defendants argue that plaintiffs’ Section
1983 claim against Mangano in his official
capacity should be dismissed as duplicative
of the claim against Nassau County. This
Court agrees. The claim against Mangano in
his official capacity is duplicative of the
municipal liability claim lodged against
Nassau County under Monell, 436 U.S. 658.
See, e.g., Tsotesi v. Bd. of Educ., 258 F.
Supp. 2d 336, 338 n.10 (S.D.N.Y. 2003)
(dismissing claims against officials sued in
their official capacities where plaintiff also
sued municipality (citing Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985))).
Therefore, the Court dismisses the Section
1983 claim brought against Mangano in his
official capacity.
ii. Individual Capacity
Defendants also argue that plaintiffs’
Section 1983 claim against Mangano in his
individual capacity should be dismissed
given Mangano’s lack of knowledge or
involvement in the unconstitutional conduct
alleged. In order to hold Mangano liable in
his individual capacity under Section 1983
for intentional discrimination, plaintiffs
must provide proof of Mangano’s
discriminatory intent. See Reynolds v.
Barrett, 685 F.3d 193, 204 (2d Cir. 2012).
“[L]iability for an Equal Protection Clause
violation under § 1983 requires personal
involvement by a defendant, who must act
with discriminatory purpose. Purposeful
discrimination requires more than intent as
volition or intent as awareness of
consequences. . . . It instead involves a
decisionmaker’s undertaking a course of
action because of, not merely in spite of, the
action’s adverse effects upon an identifiable
group.” Id. (citing and quoting Iqbal, 556

10

Indeed, when asked at oral argument about
plaintiffs’ basis for holding Mangano liable in his
individual capacity under Section 1983, plaintiffs’
counsel responded with speculation and conjecture,
stating that her “feeling regarding Mangano is that he
must have known what was going on due to the
heavy involvement of NIFA, due to the large amount
of the [Ebbert] settlement of seven million dollars
plus, and the fact that it was approved by the Nassau
County legislature.” (Oral Arg. Dec. 19, 2012.)

14

Section 1983 claim brought against
Mangano in his individual capacity as well.
In sum, the Court grants the motion to
dismiss plaintiffs’ Section 1983 claims
against Mangano in both his official and
individual capacities.
IV. CONCLUSION
For the foregoing reasons, the Court
denies defendants’ motion to dismiss with
respect to plaintiffs’ EPA, NY EPA, and
Section 1307 claims. The Court grants
defendants’ motion to dismiss with respect
to plaintiffs’ Section 1983 claim against
Mangano, but denies the motion with
respect to the Section 1983 claim against the
County defendants.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated: January 3, 2013
Central Islip, NY
***
Plaintiffs are represented by Louis D.
Stober, Jr. and Jamie A. Rowsell, Law
Offices of Louis D. Stober, Jr., LLC, 350
Old Country Road, Garden City, N.Y.
11530.
Defendants are represented by
Michelle M. Faraci, Nassau County
Attorney’s Office, One West Street,
Mineola, N.Y. 11501.

15