42 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP they may attempt to make of statistics and other expert evidence to overcome those challenges. In that case, a union that represents hundreds of current and former probation officers, and five female probation officers, sought to represent a class of probation employees, alleging that female probation officers of color were discriminated against in terms of pay and promotions in violation of title VII.321 The employer’s collective bargaining agreement with the union set minimum and maximum salaries for probation officers at different levels, established a schedule governing pay increases, and set pay rates for new hires. Plaintiffs alleged that the employer had kept probation officers’ pay at the lowest end of the salary range and had reduced their opportunities for paid overtime.322 They also alleged, among other things, that male probation officers were paid more than female probation officers at each tier of that position. Plaintiffs supported that allegation with the findings of an expert, who purportedly found that white male probation officers earned more than their counterparts, but admitted that those results did not take into account the officers’ titles.323 The gravamen of plaintiffs’ complaint was that white males with the same tenure as probation officers, and the same educational levels, were promoted to higher and better-paid positions as supervising probation officers at a higher rate than women of color.324 The employer sought dismissal. The court first held that Plaintiffs could not rely on the continuing violation doctrine to extend the statute of limitations applicable to their promotion claims: “an ‘allegation of an ongoing discriminatory policy does not extend the statute of limitations where the individual effects of the policy that give rise to the claims are merely discrete acts.’”325 Looking to the merits, the court held that plaintiffs had failed to allege a discriminatory promotion claim because their statistics were based on a comparison of the wrong populations. Only Probation Officers who achieve one of the three highest scores on an exam are eligible for promotion. “If Plaintiffs had alleged that female Probation Officers of color who were not promoted were eligible for such promotions, these statistics might well provide the foundation for a viable claim. But without any such allegations, the Court cannot rely on these statistics alone to infer either a pattern or practice of discrimination or that any disparate impact on women of color was caused by a particular policy or practice.”326 The court held that plaintiffs’ pay discrimination claims were timely because they had received paychecks within the limitations period, and each payment was a discrete discriminatory act.327 Turning to the merits, the court held that plaintiffs had failed to allege any kind of discriminatory pay claim, whether based on discriminatory treatment or adverse impact theories, because they failed to allege facts sufficient to show they were paid less or that they performed jobs equal to their male comparators: “Merely stating that the Administrative Staff Analyst job requires less ‘skill, knowledge and ability’ articulates just part of this requirement: it does not provide a sufficient description of the responsibilities, requirements, or working conditions of Administrative Staff Analy[sts] that would allow the Court to plausibly infer that they perform equal work to Probation Officers.”328 Even with respect to Probation Officers who share the same title, Plaintiffs failed to allege anything more than conclusory assertions that the court was not bound to accept as true.329 Nor could plaintiffs’ statistics salvage those claims, because those statistics did not break salary disparities down by title: “Plaintiffs’ expert economist concluded that the pay disparities he identified were largely attributable to race and gender disparities in job title—indeed, that job title disparity by race and gender results in a salary disparity by race and gender.”330 321 Id. at *1. 322 Id. at *2. 323 Id. at *3. 324 Id. 325 Id at *5 (quoting Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012)). The court held that doctrine was inapplicable to class-wide pattern-or-practice claims that are based on discrete acts, as they were in this case, because “[p]ay discrimination is a discrete act that occurs each time an individual is paid wages that have been lowered as a result of a discriminatory practice or decision.” Id. And failure to promote is also treated as a discrete act even if it occurs as part of a classwide pattern or practice. Id. 326 Id. at *7 (emphasis in original). 327 Id. 328 Id. at *8. 329 Id. at *9. 330 Id. at *10.
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