Fоllowing a three-year investigation, the Equal Employment Opportunity Commission (“EEOC”) filed suit against the Port Authority of New York and New Jersey (“Port Authority”), asserting that the Port Authority paid its female nonsupervisory attorneys at a lesser rate than their male counterparts for “equal work,” in violation
Holding to the contrary, the district court granted the Port Authority’s motion for judgment on the pleadings under Federal Rule of Civil Proсedure 12(c). See EEOC v. Port Auth. of N.Y.&N.J., No. 10 Civ. 7462(NRB),
Background
In 2007, spurred by a charge of discrimination filed by a female attorney in the Port Authority’s law department, the EEOC began an investigation into the Port Authority’s pay practices. The Port Authority states that it cooperated with the investigation, a characterization the EEOC does not contest. In 2010, the EEOC issued a determination letter announcing its conclusion that the Port Authority had violated the EPA by paying its female attorneys at a lesser rate than its male attorneys. Specifically, the EEOC asserted that a comparison of the salaries of “similarly situated attorneys” revealed that “males were earning more than their female comparators, and in most instances by a wide margin.” Moreover, according to the EEOC, “[a] review of the evidence indicated] that the pay disparity [was] not explained by ... factors other than sex.” The EEOC did not identify additional claimants, any comparators, or facts supporting its conclusion that the attorneys at issue were “similarly situated.” The determination letter offered conciliation discussions, which the Port Authority declined. The EEOC then initiated this suit.
The EEOC’s complaint alleges, essentially in sum, that the Port Authority violated the EPA because:
The Port Authority has paid and continues to pay wages to its non-supervisory female attorneys at rates less than the rates paid to male employees in the same establishments for substantially equal work for jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.
J.A. 11-12. The complaint charges that while nonsupervisory attorneys share the same job code, female attorneys are paid salaries “less than male attоrneys having the same job code,” and that “[t]he disparity in pay cannot be attributed to factors other than sex.” J.A. 12. The Port Authority answered, and at a subsequent conference, the district court suggested its skepticism that the EEOC had adequately pled a claim, despite its access to evidence gathered during the three-year investigation. Accordingly, the district court ordered the Port Authority to serve and the EEOC to respond to interrogatories to elucidate “what [the EEOC’s] position is.”
In its responses to the Port Authority’s interrogatories, the EEOC identified fourteen female nonsupervisory attorneys as claimants as well as a host of alleged comparators for each claimant, with the claimants and comparators presented in a table comparing their dates of bar admission, dates of service with the Port Authority, salaries, and divisions. The EEOC asserted that the claimants’ and comparators’ jobs were substantially similar based on broad allegations that, inter alia, the attorneys served the same client, the Port Authority; there were no job descriptions differentiating between jobs; and the attorneys’ jobs all demanded a professional demeanor, compliance with rules of professional conduct, and familiarity with legal documents. The EEOC also provided allegations specific to the Port Authority to support its contention that the Port Authority understood the claimants’ аnd comparators’ jobs to be similar, including that the attorneys shared the same job code; the Port Authority’s attorney “maturity curve” — or chart for determining salaries — did not differentiate between practice areas or divisions when setting upper and lower limits for salaries, but instead relied on years of legal experience; the Port Authority used the same criteria— such as “decision making” and “interpersonal skills” — to evaluate the performance of all its nonsupervisory attorneys; and the Port Authority did not invariably separate work by practice area, but instead assigned work across divisions, and sometimes moved attorneys between divisions or into consolidated divisions.
Finally, the EEOC asserted that the claimants’ and comparators’ jobs demanded substantially equal skill, effort, and responsibility, and were performed under similar working conditions — the statutory criteria underlying the equal work inquiry. As to skill, the EEOC alleged that the attorneys’ jobs “do not require different experience, training, education, or ability,” and instead require:
the same professional degree and admission to the bar[;] ... problem-solving and analytical skills to identify, research, analyze, evaluate, and resolve legal issues clearly and persuasively!;] ... the use of professional judgment and legal skills to draft, review, and implement legal documents!;] • • • the ability to understand and comply with department, agency, and legal instruсtions and procedures!;] • • • the ability to consult with and provide legal advice to the same client, the Port Authority!;] ... the ability to interact and consult with outside legal staff or other Port Authority attorneys on client matters!;] ... the same degree of diligence and persistence!; and] ... the ability to manage time,meet deadlines, and prioritize assignments.
J.A. 60. As to effort, the EEOC alleged, without elaboration, that the attorneys’ jobs:
require the same physical or mental exertion[;] ... are performed under time pressures and deadlines!; and] ... require the same problem-solving and analytical efforts, the same efforts to draft, review, and implement legal documents, the same efforts to consult with and provide legal advice to the Port Authori-' ty, and the same efforts to interact and consult with outside legal staff or other Port Authority attorneys on client matters.
J.A. 63-64. Concerning responsibility, the EEOC alleged that:
[C]laimants[’] and comparators’ jobs require the same degree of accountability and supervision!;] ... are all non-supervisory and have substantially the same reporting structure and the same level of supervision!;] ... are of equal significance to the [Port Authority; and] ... require that the claimants and comparators be able to respond to and act on behalf of the General Counsel. All of the jobs are responsible for decisions that affect the Port Authority’s rights and liabilities. The jobs require independent judgment and discretion subject to the same level of oversight and supervision!;] • • • require that supervisory and management staff remains informed of the status of matters!; and] ... require the same responsibility to provide advice and respond to and represent the interests of the same client, the Port Authority.
J.A. 64-65. Last, as to working conditions, the EEOC alleged that:
[A]ll of the claimants and comparators worked out of the same office, in a legal setting customarily used by attorneys, and none of the claimants or comparators were regularly exposed to different physical surroundings, including different elements such as toxic chemicals or fumes, or physical hazards in performing their job duties.
J.A. 66. In sum — stating nothing about the actual content of the work done by the dozens of аttorneys either within or across practice areas at the Port Authority — the EEOC’s responses alleged, in conclusory fashion, that “all of the non-supervisory attorney jobs in [the Port Authority’s] law department are substantially equivalent and require the same skill, effort, and responsibility.” J.A. 69.
Following the EEOC’s filing of its responses, the Port Authority requested leave to move for judgment on the pleadings pursuant to Rule 12(c). At a conference on that request, the district court sought to confirm the basis of the EEOC’s claim. First, the court expressed its confusion concerning the EEOC’s selection of comparators, which it characterized as, “frankly, random.” By way of example, the court noted that the EEOC had comparеd a female claimant who was admitted to the bar in 1978, joined the Port Authority in 1985, worked for the “Real Estate, Leases, and Environmental Law” department, and earned $145,262, with a male comparator who was admitted to the bar in 1962, joined the Port Authority in 1994, worked for the “Commercial Litigation” department, and made $147,498 — a difference of sixteen years legal experience and approximately $2,000 salary. The EEOC defended its selection on the ground that each claimant and her comparators had no “more than ten years!’]” difference in combined years of bar admission and service with the Port Authority. In the court’s example, then, the male attorney’s additional years of legal experience were offset by the female attorney’s additional years
On the basis of the pleadings аnd the EEOC’s interrogatory responses, which were treated as a “functional amendment” to the EEOC’s complaint, the district court thereafter granted judgment in favor of the Port Authority. Port Auth. of N.Y. & N.J.,
Finally, the district court deemed the EEOC’s “an attorney is an attorney is an attorney” theory insufficient to support its claim. The court acknowledged that the EEOC had alleged four facts suggesting that the Port Authority treated the attorneys’ positions similarly: the claimants and comparators had the same job code; were pаid within the bounds of an attorney “maturity curve” based on years of legal experience; were evaluated according to the same performance criteria; and were not inflexibly limited to distinct legal divisions. Id. at *5. But the court concluded that these allegations did not touch upon the attorneys’ actual job duties and thus could not give rise to an inference that the attorneys’ jobs required “substantially equal” work. To reach this conclusion, the court first held that the shared job codes were not entitled “any weight” because titles or codes “are not a reflection of job content.” Id. Similarly, the court deemed the use of identical performance criteria to be insignificant given thаt the “blandly generic” criteria the Port Authority employed could be “used to evaluate different employees on different scales.” Id. Next, the court found that the movement of attorneys between divisions was inconsequential, as transfers would “only be asked of those who have the ability to satisfy the requirements” and that the consolidation of divisions was beside the point as it did not “speak to the actual content of the jobs.” Id. Last, the court found that the “maturity curve’s” reliance on years of legal experience to set permissible salary ranges compelled the conclusion that factors “other” than years of legal experience informed the selection оf salaries within the predetermined ranges. Id. at *6. As such, the court declared that the EEOC’s “bald assertion” that the “other” factor must be sex ignored not only potential
The district court concluded that it “strains credulity to argue that [the] Port Authority, which does not set wages based on a lockstep scale, does not factor into its pay decisions the kind and quality of work its attorneys perform.” Id. Because the EEOC’s “allegations as a whole simply do not rise to the requisite level of facial plausibility,” the court granted judgment in favor of the Port Authority and dismissed the EEOC’s complaint. Id. This appeal followed.
Discussion
A. Legal Standard
We review de novo а district court’s dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(c), employing “the same ... standard applicable to dismissals pursuant to Fed.R.Civ.P. 12(b)(6).” Morris v. Schroder Capital Mgmt. Int’l,
The pleading standard we employ in reviewing discrimination complaints is somewhat less settled, however. In Swierkiewicz v. Sorema N.A.,
That standard was abandoned by the Court’s later rulings in Twombly and Iqbal, which clarified the proper Rule 8 standard as being whether a complaint alleged “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly,
Since Twombly and Iqbal, Swierkiewicz ’s continued vitality has been an open question in this Circuit. See, e.g., Daikin Am. Inc.,
Instead, along with several of our sister cirсuits, we recognize that Swierkiewicz has continuing viability, as modified by Twombly and Iqbal. Swierkiewicz held only that discrimination complaints are subject to the requirements of Rule 8, a rule now guided by the Court’s more recent holdings on the pleading standard. See Rodriguez-Reyes,
B. The EPA Claim
Congress passed the EPA in 1963 “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 v. Prendergast,
While the equal work inquiry does not demand evidence that a plaintiffs job is “identical” to a higher-paid position, the standard is nonetheless demanding, requiring evidence that the jobs compared are “substantially equal.” See Lavin-McEleney v. Marist Coll.,
The EEOC’s regulations also define the statutory criteria underlying the equal work inquiry — equal skill, effort, and responsibility — by reference to actual job content. For example, equal skill is defined as including “such factors as experience, training, education, and ability,” as measured “in terms of the performance requirements of the job” at issue. 29 C.F.R. § 1620.15(a) (emphasis added). Equal effort, by turn, looks to “the measurement of the physical or mental exertion needed for the performance of a job.” Id. § 1620.16(a) (emphasis added). And equal responsibility turns on “the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation.” Id. § 1620.17(a) (emphasis added). In addition, the regulations illustrate these definitions by reference to fact-intensive examples that emphasize the centrality of job content to the equal work inquiry, such as supermarket employees who are either required to move heavy boxes or reorganize small merchandise, and sales clerks who are either entrusted to determine whether to accept personal checks or who are not so empowered. See id. §§ 1620.15-17.
This Court has similarly focusеd on the congruity and equality of actual job content between the plaintiff and comparator in weighing EPA claims. In Tomka v. Seiler Corporation, we stated that “job content and not job title or description” is the central concern of an EPA claim.
To be sure, the bulk of these cases concerned whether the plaintiffs had proven their EPA claims following summary judgment or trial, not whether the plaintiffs had adequately pleaded their claims. Nonеtheless, these cases as well as the EEOC’s regulations and Compliance Manual stand for a common principle: a successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice. At the pleading stage, then, a plausible EPA claim must include “sufficient factual matter, accepted as true” to permit “the reasonable inference” that the relevant employees’ job content was “substantially equal.” See Iqbal,
First, the EEOC alleges in its complaint only that the Port Authority paid its female nonsupervisory attorneys less than its male nonsupervisory attorneys “for substantially equal work,” that these attorneys had “the same job code,” and that the disparity in pay “cannot be attributed to factors other than sex.” The EEOC’s bald recitation of the elements of an EPA claim and its assertion that the attorneys at issue held “the same job code” are plainly insufficient to support a claim under the EPA. See Twombly,
Next, while the interrogatory responses provide some additional content to the EEOC’s complaint, these responses too are insufficient to support a “reasonable inference” of “substantially equal” work or to provide the Port Authority-notice of the grounds for the EEOC’s claim. See Iqbal,
Nor does the EEOC’s table purporting to compаre claimants and comparators bolster its claim. As the district court noted, the comparisons drawn appear superficially random, and rightly so: as the EEOC acknowledged, the table simply juxtaposes claimants and comparators whose “combined” bar admission and service dates are separated by no “more than ten years” — a full decade of difference in experience.
Finally, the EEOC’s theory that “an attorney is an attorney is an attorney” does nothing to assist its claim. As detailed above, such broad generalizations based on mere job classifications are not cognizable under the EPA. And while it is conceivable that the EEOC might have alleged facts supporting its contention that the attorneys’ job duties were treated interchangeably, potentially giving rise to an inference that they performed “substantially equal” work, no such specific allegations can be found in the EEOC’s complaint. See Beck-Wilson v. Principi,
Job codes, again, say nothing of actual job duties and are thus peripheral to an EPA claim. The use of identical evaluative criteria such as “project management,” “communication,” “flexibility and adaptability,” and “attendance,” moreover, speaks only to the breadth of the standards used, nоt to whether the attorneys subject to evaluation face varying workplace demands. And, as the district court noted, the “maturity curve’s” reliance on years of legal experience to set salary ranges supports only the inference that factors other than legal experience — be it job content or any number of other criteria — informed the determination of salaries within the curve. Finally, the transfer of attorneys between divisions supports the inference that some attorneys had multidisciplinary skill sets, not that all Port Authority attorneys were required to be so skilled. All told, the EEOC’s allegations supporting its “an attorney is an attorney is an attorney” theory do nothing to elucidate the skills or effort demanded of the Port Authority’s many attorneys and, thus, dо nothing to support the EEOC’s claim.
Simply put, the EEOC has not alleged a single nonconclusory fact supporting its assertion that the claimants’ and comparators’ jobs required “substantially equal” skill and effort. That the EEOC’s failure to include such factual allegations followed a three-year investigation into the Port Authority’s pay practices — an investigation conducted with the Port Authority’s cooperation — is of some note. The determination of whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
Given the foregoing analysis, the EEOC’s pleadings cannot be said to contain “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegality].” See Twombly,
Conclusion
For the foregoing reasons, we Affirm the judgment of the district court.
Notes
. The EEOC also asserted claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623, but the parties stipulated to the dismissal of those claims with prejudice and we do not consider them in this appeal.
. The following facts are taken from the EEOC’s complaint and incorporated interrogatory responses, "which we assume to be true and construe in the light most favorable to the plaintiff.” See Cruz v. FXDirectDealer, LLC,
. This ten-year range is not the table’s only shortcoming. The EEOC nowhere clarifies whether the attorneys cited in the table always wоrked in the same divisions since joining the Port Authority or even whether they have always worked in legal positions. For instance, the table indicates that several attorneys joined the Port Authority years before their admission to the bar.
. In so ruling, we do not address the question whether the EEOC must name all claimants prior to suit or whether the EEOC must allege facts supporting that each claimant performed "substantially equal” work to a higher-paid co-worker of the opposite sex. We hold only that where, as here, a plaintiff fails to allege any nonconclusory facts from which to infer that a single claimant performed "substantially equal” work to a higher-paid co-worker of the opposite sex, the plaintiff has failed to state a plausible claim for relief under the EPA.