Equal Pay Act Claims Continue; Summary Judgment Inappropriate for Plaintiff and Defendant

In MICHELLE TULINO, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants., 2018 WL 1568970, at *3 (S.D.N.Y., 2018), the court held that neither party was entitled to summary judgment on her Equal Pay Act (federal and New York State) claims.

The court explained the elements of such claims:

[A] plaintiff must demonstrate 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.

Initially, it doesn’t look so good for plaintiff:

Here, Defendants make a strong case that Tulino fails to satisfy her burden — and, contrary to her suggestion at times (see, e.g., Pl.’s Mem. 22), it is indeed her burden — of showing that her job and the jobs of the men to whom she compares herself were “substantially equal in skill, effort, and responsibility.” … For one thing, the sole evidence she submits in support of that showing is her own testimony, in the form of her deposition and affidavits. For another, there are reasons to doubt that all of her testimony is even admissible — either on the ground that she lacks sufficiently specific personal knowledge of her comparators’ actual jobs or on the ground that her affidavit contradicts her deposition testimony. … And finally, the Court is inclined to agree with Defendants’ assertion that Tulino “unbelievably claims that every single comparator was failing to perform the job responsibilities reflected on his personnel documents, while at the same time claiming that she both performed both [sic] the functions listed on her personnel documents and numerous other alleged responsibilities — for which she provides no documentary support.

But all is literally not lost; the court proceeded to explain: “Notwithstanding the force of these arguments, however, the Court cannot grant summary judgment to Defendants[,]” reasoning that “he assessment of a witness’s credibility is, of course, a function reserved for the jury.”

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