2d Circuit Affirms Dismissal of Sex Discrimination Case, Citing Differences of Jobs Held By Alleged Male Comparators

In Miller v. City of New York, 18-1607-cv (2d Cir. May 28, 2019) (Summary Order), the Second Circuit affirmed the dismissal of plaintiffs’ class action lawsuit alleging violations of the Equal Pay Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Plaintiffs, who are predominantly female school crossing guards (“SCGs”), allege that, due to their sex, they are paid less than predominantly male Level II Traffic Enforcement Agents (“TEA IIs”).

From the Order:

We affirm for substantially the reasons set forth in the District Court’s well-reasoned and thorough May 1, 2018 Opinion and Order. The SCG and TEA II jobs are not substantially equivalent, as TEA IIs must fulfill more requirements, undergo more training, perform more responsibilities, and labor under different and more hazardous working conditions. The Plaintiffs do not persuasively dispute these differences. Instead, they argue that the District Court erred by failing to circumscribe the scope of its comparison to times when TEA IIs are temporarily assigned to work at school-crossing guard posts. Not only do the Plaintiffs fail to cite any authority that would support narrowing the scope of the District Court’s job function analysis, but they have also waived this argument by failing to present it below. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (“It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” (internal quotation marks and brackets omitted)). Further, the Plaintiffs have failed to offer any proof of discriminatory animus, since they do not allege—much less identify any evidence—that the pay rates achieved through collective bargaining were based on gender or that any facially neutral City employment practice had a discriminatory impact against women.

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