Miller v. City of N.Y.

SHIRLEY MILLER, et al., Plaintiffs, v. THE CITY OF NEW YORK, Defendant.

15cv7563

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 1, 2018

OPINION & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge:

The City of New York (the "City") moves for summary judgment in this class action brought by female New York City school crossing guards claiming violations of the Equal Pay Act ("EPA"), New York State Human Rights Law ("SHRL"), and New York City Human Rights Law ("CHRL"). For the reasons that follow, the City's motion for summary judgment is granted.

BACKGROUND

In October 2016, this Court, on consent, conditionally certified a collective action on Plaintiffs' EPA claim and certified a class action on Plaintiffs' SHRL and CHRL claims. (See Order, ECF No. 42 "Order".) Both classes were defined as female employees who are or were employed as school crossing guards ("School Crossing Guards") from September 2012 through December 2016. (Order.) Approximately 1,600 School Crossing Guards opted into the collective action, and the SHRL and CHRL classes consist of over 2,000 individuals. (See Docket; Declaration of Aliza Balog, ECF No. 89 ("Balog Decl."), Ex. A ("Gender Breakdown").)

School Crossing Guards work for the New York City Police Department ("NYPD"), and are tasked with managing the flow of children and their parents at intersections near schools. (See First Amended Complaint, ECF No. 30 ("FAC"), ¶¶ 586-587.) The School Crossing Guard Manual describes the purpose of a School Crossing Guard as "protect[ing] children at school crossings." (Balog Decl., Ex. R ("Crossing Guard Manual"), at 8.) School Crossing Guards regulate traffic in accord with traffic signals, stop traffic to allow children to cross, inform pedestrians how to contact the police, and make note of traffic violations that they observe. (Crossing Guard Manual, at 8.) They are not permitted to override traffic signals and are required to "[r]emain on [the] sidewalk near the curb when not directing children across the street." (Crossing Guard Manual, at 8 ("Regulate traffic only as necessary to escort children safely across the street.") (emphasis added); Balog Decl., Ex. S ("Crossing Guard Job Specifications").)

School Crossing Guards do not sit for a civil service examination or undergo psychological testing. (Defendant's Local Rule 56.1 Statement of Material Undisputed Facts, ECF No. 92 ("Def.'s 56.1 Statement"), ¶¶ 64, 69.) There is no educational requirement or need to possess a driver's license. (Def.'s 56.1 Statement ¶¶ 68-69.) They receive one week of training. (Def.'s 56.1 Statement ¶ 71; Balog Decl., Ex. U ("Crossing Guard Orientation Guide"), at 2.) While School Crossing Guards must be familiar with traffic regulations, they do not enforce them. (Def.'s 56.1 Statement ¶ 75; see Crossing Guard Manual, at 8 ("Be familiar with Traffic Regulations and Vehicle Traffic Laws.").) School Crossing Guards are not authorized to issue tickets and do not carry radios or electronic equipment. (Def.'s 56.1 Statement ¶¶ 87-88, 102-103.) They work a maximum of five hours per day and do not work nights, holidays, orweekends. (Def.'s 56.1 Statement ¶¶ 94, 96-98.)

The NYPD also employs traffic enforcement agents. (See FAC ¶ 589.) The crux of Plaintiffs' claims is that School Crossing Guards are paid less than Traffic Enforcement Agents Level II ("Traffic Enforcement Agents"), even though they claim to do substantially the same work. (FAC ¶ 2-3.)

Traffic Enforcement Agents "enforce laws, rules and regulations relating to the movement, parking, stopping and standing of vehicles." (Balog Decl., Ex. B ("TEA Job Duties"), at 1.) Accordingly, Traffic Enforcement Agents direct traffic, prepare and issue paper and electronic summonses, testify at administrative hearings and in court, and operate radios and other electronic equipment. (TEA Job Duties, at 1-2; see also Declaration of Joseph L. Ellis III, ECF No. 90 ("Ellis Decl."), at ¶¶ 6-7 ("In addition to enforcing laws, rules and regulations relating to the movement, parking, stopping, and standing of vehicles, Traffic Enforcement Agents Level II also direct and control traffic at assigned locations and maintain the efficient and safe flow of vehicles and pedestrians.").)

In contrast to School Crossing Guards, Traffic Enforcement Agents perform a variety of duties. For example, Traffic Enforcement Agents may "pull traffic"—i.e., wave a car through a red light. (Balog Decl., Ex. F ("TEA Manual"), at 12.)¹ And Traffic Enforcement Agents may be required to work nights, weekends, and holidays, and can be mandated to work overtime. (Ellis Decl. ¶¶ 8-10.) Unlike School Crossing Guards, Traffic Enforcement Agentsare taught to "[s]tay in the intersection. Do not stand on the sidewalk." (TEA Manual, at 12; but see Certification of Mohammad Shahjahan in Opp. to Mot. for Summary Judgment, ECF No. 98 ("Shahjahan Cert."), at ¶ 7 (opining that Traffic Enforcement Agents stand in traffic only when necessary).)

The qualifications to be a Traffic Enforcement Agent are more rigorous than those for School Crossing Guards. First, a Traffic Enforcement Agent must have served as a Traffic Enforcement Agent Level I. To qualify as a Traffic Enforcement Agent Level I, an applicant must pass a written exam, psychological evaluation, medical screening, drug screening, background investigation, and physical fitness test. (See TEA Job Duties, at 4; Balog Decl. Ex. D ("Notice of Examination"), at 1-3.) A Traffic Enforcement Agent Level I applicant must possess a four-year high school diploma and a valid driver's license. (TEA Job Duties, at 4.) A Traffic Enforcement Agent Level I receives ten to eleven weeks of training on topics including New York traffic laws, radio call signals and transmissions, hand signals, and field training. (Ellis Decl. ¶¶ 3-4; Def.'s 56.1 Statement ¶¶ 23-36.) When promoted to a Traffic Enforcement Agent Level II, an individual receives additional training on directing traffic. (Def.'s 56.1 Statement ¶ 51.)

At the time that this case was filed, Traffic Enforcement Agents received an annual salary ranging from $33,751 to $40,930 per year, which equates to approximately $16.16 to $19.60 per hour. (Balog Decl., Ex. H, at 4; Def.'s 56.1 Statement ¶ 40.) In contrast, School Crossing Guards were paid at an hourly rate ranging between $11.79 and $14.40 per hour. (Balog Decl., Ex. AA, at *3; Ex. W.) Compensation for Traffic Enforcement Agents and School Crossing Guards are set pursuant to separate collective bargaining agreements. (See BalogDecl., Exs. G-H, W-Z.) Approximately 44% of Traffic Enforcement Agents are female, while 56% are male. (Gender Breakdown.) Approximately 96% of School Crossing Guards are female, while 4% are male. (Gender Breakdown.)

LEGAL STANDARD

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). However, "[a] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," as "[m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal citation and alterations omitted). Indeed, the "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.

DISCUSSION

I. Equal Pay Act

"The Equal Pay Act . . . prohibits employers from discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for 'equal work on jobs the performance of which requires equal skill, effort, and responsibility, andwhich are performed under similar working conditions.'" Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (quoting 29 U.S.C. § 206(d)(1)). "The purpose behind the enactment of the EPA [is] to legislate out of existence a long-held, but outmoded societal view that a man should be paid more than a woman for the same work." Belfi, 191 F.3d at 135; see also Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (Congress's goal was "to require that equal work will be rewarded by equal wages") (internal citation omitted).

To establish a violation of the EPA, a plaintiff must first come forward with a prima facie case that "(1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort and responsibility; and (3) the jobs are performed under similar working conditions." E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254-55 (2d Cir. 2014) (internal citation and alterations omitted). A plaintiff need not show discriminatory intent. Belfi, 191 F.3d at 136.

"While the equal work inquiry does not demand evidence that a plaintiff's job is 'identical' to a higher-paid position, the standard is nonetheless demanding, requiring evidence that the jobs compared are 'substantially equal.'" Port Auth., 768 F.3d at 255; see also Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ("[J]obs which are 'merely comparable' are insufficient to satisfy a plaintiff's prima facie burden."); 29 C.F.R. § 1620.14(a). In fact, "Congress rejected statutory language encompassing 'comparable work' to instead mandate equal pay for 'equal work.'" Port Auth., 768 F.3d at 254 (...