MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.
In this action, Plaintiffs Kathleen Galligan, Mary Schroeder, Rose Ann McKean, Regina H. Boone, Susan Mickels and Ann Zaniewski assert that Defendants the Detroit Free Press and Gannett Co., Inc. violated the federal Equal Pay Act of 1963, 29 U.S.C. § 206(d) (the "EPA") and Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2202 (the "ELCRA") by paying them less than "similarly situated male colleagues on the basis of their gender, female, even though [they] performed similar duties requiring the same skill, effort, and responsibility of male counterparts." (Am. Compl. at ¶ 118, ECF # 9 at Pg. ID 84; see also id. at ¶ 129, Pg. ID 86.) There are currently two motions pending before the Court: Defendants' motion to dismiss Plaintiffs' Amended Complaint (see ECF # 14) and Plaintiffs' motion to compel Defendants to engage in a Rule 26(f) conference. (See ECF # 26.) For the reasons explained below, the Court
Plaintiffs are employees of the Detroit Free Press, a wholly-owned subsidiary of Gannett. (See Am. Compl. at ¶¶ 1, 9, ECF # 9 at Pg. ID 64-65.) The Amended Complaint alleges the following facts specific to each Plaintiff and her position:
In December 2002, the Detroit Free Press hired Galligan as a full-time photographer. (See id. at ¶ 24, Pg. ID 68.) Galligan's primary duties and responsibilities as a photographer are as follows: "identify newsworthy stories; take and edit photographs and videos; present and edit images and videos; caption photographs or write copy blocks; present images and videos for editors' review; serve as liaisons between the Detroit Free Press and the Community; build and maintain contacts and sources within the community; manage any difficulties and safety issues associated with obtaining newsworthy images and videos in the field." (Id. at ¶ 40, Pg. ID 70.) All photographers employed by the Detroit Free Press have these same primary duties and responsibilities and perform substantially equal work. (See id. at ¶¶ 39-40, Pg. ID 70.) In addition, the work performed by all Detroit Free Press photographers
Galligan holds a Bachelor's Degree in History and English from Madonna University. (See id. at ¶ 27, Pg. ID 68.) She has taken photography courses and completed specialized photography training. (See id. at ¶¶ 27, 30, Pg. ID 68-69.) Galligan has also received a number of honors and awards for her work. (See id. at ¶ 33, Pg. ID 69.) Galligan's performance, skills, experience, training, qualifications, and seniority are equal or substantially equal to those of male photographers at the Detroit Free Press. (See id. at ¶ 38, Pg. ID 70.) Despite that fact, the Detroit Free Press has consistently paid Galligan less than similarly-situated male photographers. (See id. at ¶¶ 36-37, Pg. ID 69-70.)
In 1979, the Detroit Free Press hired Schroeder as a photographer. (See id. at ¶ 41, Pg. ID 71.) Schroeder assumed the position of full-time picture editor, or photography editor, in or around 2008. (See id. at ¶ 44, Pg. ID 71.) Schroeder's work is analogous to the work of an assistant editor. (See id.) Schroeder's primary duties and responsibilities are as follows: "generate newsworthy ideas and topics for online and print content, assign a staff member to complete the assignment, coach the staff member to complete the assignment, troubleshoot with the staff member if any difficulties arise when completing the assignment, edit the content, prepare the content for publication online and in print, and develop budgets and ensure that budget requirements are met." (Id. at ¶ 52, Pg. ID 72-73.) All assistant editors employed by the Detroit Free Press have these same primary duties and responsibilities and perform substantially equal work. (See id. at ¶¶ 51-52, Pg. ID 72.) In addition, the work performed by all Detroit Free Press assistant editors requires equal skill, effort, and responsibility and is performed under similar working conditions. (See id. at ¶ 51, Pg. ID 72.)
Schroeder holds a Bachelor's Degree in Fine Arts and Photography from Ohio University in Athens, Ohio. (See id. at ¶ 41, Pg. ID 71.) She has also received a number of honors and awards for her work. (See id. at ¶ 47, Pg. ID 71.) Schroeder's performance, skills, experience, training, qualifications, and seniority are equal or substantially equal to those of male assistant editors at the Detroit Free Press. (See id. at ¶ 50, Pg. ID 72.) Despite that fact, the Detroit Free Press has consistently paid Schroeder less than similarly-situated assistant editors. (See id. at ¶¶ 48-49, Pg. ID 72.)
The Detroit Free Press hired McKean in 1981. (See id. at ¶ 53, Pg. ID 73.) McKean attained the position of full-time photo editor in 2005, and she became a designer in December 2014. (See id. at ¶¶ 53-54, Pg. ID 73.) McKean's primary duties and responsibilities as a designer are as follows: "use organizational and creative or aesthetic skills sets to design pages of the newspaper, place stories, and place and select photographs and headlines. Designers work closely with editors of various departments and photo editors in the earlier stages of the design process." (Id. at ¶ 63, Pg. ID 75.) All designers employed by the Detroit Free Press have these same primary duties and responsibilities and perform substantially equal work. (See id. at ¶¶ 62-63, Pg. ID 74-75.) In addition, the work performed by all Detroit Free Press designers requires equal skill, effort, and responsibility and is performed under similar working conditions. (See id. at ¶ 62, Pg. ID 74.)
The Detroit Free Press hired Boone as a full-time photographer in September 2003. (See id. at ¶ 64, Pg. ID 75.) In December 2016, Defendants laid off Boone, but she remained on Defendants' payroll through June 2017. (See id. at ¶ 75, Pg. ID 76.) Boone's primary duties and responsibilities as a photographer were as follows: "identify newsworthy stories; take and edits photographs and videos; present and edit images and videos; caption photographs or write copy blocks; present images and videos for editors' review; serve as liaisons between the Detroit Free Press and the community; build and maintain contacts and sources within the community; manage any difficulties and safety issues associated with obtaining newsworthy images and videos in the field." (Id. at ¶ 81, Pg. ID 77.) All photographers employed by the Detroit Free Press have these same primary duties and responsibilities and perform substantially equal work. (See id. at ¶¶ 80-81, Pg. ID 77.) In addition, the work performed by all Detroit Free Press photographers requires equal skill, effort, and responsibility and is performed under similar working conditions. (See id. at ¶ 80, Pg. ID 77.)
Boone holds a Bachelor's Degree in Political Science from Spelman College and a graduate degree (with a focus on photojournalism) from Ohio University's School of Visual Communication. (See id. at ¶¶ 66, 69, Pg. ID 75.) She has also received a number of honors and awards for her work. (See id. at ¶ 73, Pg. ID 76.) Boone's skills, experience, training, qualifications, and seniority were equal or substantially equal to those of male photographers at the Detroit Free Press. (See id. at ¶ 79, Pg. ID 77.) Despite that fact, the Detroit Free Press consistently paid Boone less than similarly-situated male photographers. (See id. at ¶¶ 77-78, Pg. ID 77.)
The Detroit Free Press hired Mickels in 1984. (See id. at ¶ 82, Pg. ID 78.) Mickels joined the Food section in 1995 and became a reporter in 2011. (See id. at ¶ 83, Pg. ID 78.) Mickels' primary duties and responsibilities as a reporter are as follows: "gather and uncover news and information; conduct research; interview individuals; identify and spot stories and trends; pitch story ideas to editors; pursue story assignments given by editors; write stories; establish and maintain contacts with sources; format stories for online publication; and take photos and videos when needed." (Id. at ¶ 99, Pg. ID 80-81.) All reporters employed by the Detroit Free Press have these same primary duties and responsibilities and perform substantially equal work. (See id. at ¶¶ 98-99, Pg. ID 80-81.) In addition, the work performed by all Detroit Free Press reporters requires equal skill, effort, and responsibility and is performed under similar working conditions. (See id. at ¶ 98, Pg. ID 80.)
Mickels has taken a number of collegiate courses in culinary arts, nutrition, and
The Detroit Free Press hired Zaniewski as a full-time reporter in August 2012. (See id. at ¶ 100, Pg. ID 81.) Zaniewski's primary duties and responsibilities as a reporter are as follows: "gather and uncover news and information; conduct research; interview individuals; identify and spot stories and trends; pitch story ideas to editors; pursue story assignments given by editors; write stories; establish and maintain contacts with sources; format stories for online publication; and take photos and videos when needed." (Id. at ¶ 115, Pg. ID 83.) All reporters employed by the Detroit Free Press have these same primary duties and responsibilities and perform substantially equal work. (See id. at ¶¶ 114-15, Pg. ID 83.) In addition, the work performed by all Detroit Free Press reporters requires equal skill, effort, and responsibility and is performed under similar working conditions. (See id. at ¶ 114, Pg. ID 83.)
Zaniewski holds a Bachelor's Degree in Journalism with Honors and a Communication Minor from Oakland University. (See id. at ¶ 103, Pg. ID 81.) Zaniewski has also received a number of honors and awards related to her work. (See id. at ¶¶ 107, 110, Pg. ID 81-82.) Zaniewski's performance, skills, experience, training, qualifications, and seniority are equal or substantially equal to those of male reporters at the Detroit Free Press. (See id. at ¶ 113, Pg. ID 83.) Despite that fact, the Detroit Free Press has consistently paid Zaniewski less than similarly-situated male reporters. (See id. at ¶¶ 111-12, Pg. ID 83.)
On October 13, 2017, Plaintiffs Galligan, Schroeder, McKean, and Boone filed a Complaint in this Court against Defendants. (See Compl., ECF # 1.) These Plaintiffs alleged that Defendants violated the EPA and ELCRA when they "discriminat[ed] against Plaintiffs on the basis of their gender by providing them with less compensation than similarly situated male employees performing the same or similar duties." (See id. at ¶ 2, Pg. ID 2.)
On November 8, 2017, Defendants moved to dismiss the Complaint on the ground that it lacked allegations relating to the Plaintiffs' "actual work performed, their compensation, or the work or compensation of any alleged male comparators." (Motion to Dismiss, ECF # 7 at Pg. ID 41.) In lieu of responding to Defendants' motion, Plaintiffs filed an Amended Complaint.
In the Amended Complaint, Plaintiffs again alleged that Defendants violated the EPA and ELCRA, and Plaintiffs added new allegations (many of which are set forth above in Section I(A)) concerning their pay, their actual work responsibilities and duties, and the pay and duties of their male comparators. (See id.) The Amended
On November 29, 2017, Defendants filed a motion to dismiss the Amended Complaint. (See ECF # 14.) That motion is fully briefed and ready for decision.
On February 26, 2018, Plaintiffs filed a motion to compel Defendants to engage in a Federal Rule of Civil Procedure 26(f) conference. (See ECF # 26.) Plaintiffs attached to the motion correspondence from defense counsel indicating that Defendants would participate in a Rule 26(f) conference if and when the Court denied the motion to dismiss the Amended Complaint. (See ECF # 26-2 at Pg. ID 224.)
The Court has determined that it may properly resolve Defendants' motion to dismiss and Plaintiffs' motion to compel without a hearing. See L.R. 7.1(f).
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint when a plaintiff fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when a plaintiff pleads factual content that permits a court to reasonably infer that the defendant is liable for the alleged misconduct. See id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). When assessing the sufficiency of a plaintiff's claim, a district court must accept all of a complaint's factual allegations as true. See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). "Mere conclusions," however, "are not entitled to the assumption of truth. While legal conclusions can provide the complaint's framework, they must be supported by factual allegations." Iqbal, 556 U.S. at 664, 129 S.Ct. 1937. A plaintiff must therefore provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to survive a motion to dismiss. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Plaintiffs have asserted a viable EPA claim against Defendants. "To prove an employer has violated the Equal Pay Act, a plaintiff must show that the employer paid an employee of the opposite sex different wages for equal work on jobs the
Defendants counter that Plaintiffs' EPA claim does not meet the pleading standard for EPA claims applied by the United States Court of Appeals for the Sixth Circuit in Unger v. City of Mentor, 387 Fed. Appx. 589 (6th Cir. 2010). In Unger, the Sixth Circuit affirmed dismissal of a plaintiff's EPA claim. But the complaint in Unger bore scant resemblance to Plaintiffs' Amended Complaint in this case. The complaint in Unger "cite[d] nothing more than the claim's legal elements, neglecting to provide any factual basis in support." 387 Fed.Appx. at 595. In sharp contrast here, as set forth in detail above, Plaintiffs' Amended Complaint includes factual allegations concerning Plaintiffs' duties and qualifications, the duties and qualifications of Plaintiffs' male counterparts, the conditions under which Plaintiffs and their male counterparts work, and the pay disparities between Plaintiffs and their male counterparts. Accordingly, Unger does not support dismissal of Plaintiffs' EPA claim.
Similarly, this Court's decision in Hall v. Int'l House of Pancakes, Inc., 2005 WL 1684150 (E.D. Mich. July 15, 2005), on which Defendants also rely, does not suggest that Plaintiffs' EPA allegations are deficient. In Hall, another Judge of this Court dismissed a pro se plaintiff's constitutional and EPA claims because the plaintiff did not "allege a specific federal constitutional right that has been violated, membership in a federally protected class, different treatment with respect to other similarly situated employees not members of plaintiff's protected class, or the payment of disparate wages as between plaintiff and a similarly situated [defendant] employee who is not a member of plaintiff's protected class." 2005 WL 1684150, at *2. Hall is simply inapposite given the factual allegations that Plaintiffs have made in their Amended Complaint.
Defendants also argue that Plaintiffs' EPA claims suffer from "a misplaced reliance on position titles" to satisfy the requirement that Plaintiffs' respective skills, efforts, and responsibilities are substantially equal to their similarly-situated male colleagues. (Mot. to Dismiss, ECF # 14 at Pg. ID 119.) The Court disagrees. As noted
Moreover, the primary cases on which Defendants rely in support of their job-title-only argument are distinguishable. For instance, in Port Authority of New York & New Jersey, the United States Court of Appeals for the Second Circuit affirmed dismissal of an EPA claim brought by the EEOC because — unlike Plaintiffs' EPA claim here — it did not contain any factual allegations concerning the work actually performed by the various employees at issue. The court explained:
Id. at 256.
Defendants' reliance on Noel-Batiste v. Virginia State University, 2013 WL 499342 (E.D. Va. Feb. 7, 2013), and Spencer v. Virginia State University, 224 F.Supp.3d 449,
Finally, Defendants dispute Plaintiffs' allegations that their work is similar to their alleged male comparators. Defendants insist that "it is common sense that there are different news departments, covering different types of information and events with different levels of importance" and that "[w]ithin those departments there are different levels of skills and responsibilities." (Mot. to Dismiss, ECF # 14 at Pg. ID 121.) But this argument is an attack on the truth of Plaintiffs' allegations and is not appropriate at this stage in the proceedings. See Baker, 2009 WL 200769, at *3 ("On a motion to dismiss [an EPA claim], the Court must accept as true [plaintiff's] allegations that she performed the `identical' or the `same job duties' as those with whom she seeks to compare herself."). There may well be some force to Defendants' contention that there are important differences in the skills and responsibilities of the various reporters, designers, photographers, and editors at the Detroit Free Press, and the Court will carefully consider Defendants' position if presented in a later motion for summary judgment. But at this point, the Court declines to dismiss Plaintiffs' EPA claim.
The Court likewise declines to dismiss Plaintiffs' ELCRA claim. Defendants contend that "the same reasons compelling dismissal of Plaintiffs' EPA claim" also compel dismissal of Plaintiffs' ELCRA claim because the two claims are "nearly identical." (Mot. To Dismiss, ECF # 14 at Pg. ID 128.) But, as explained above, the reasons offered by Defendants do not compel dismissal of the EPA claim, and therefore those reasons do not compel dismissal of the allegedly-identical ELCRA claim.
In sum, Plaintiffs have plausibly alleged that the Defendants violated the EPA and ELCRA. Defendants' motion to dismiss is therefore denied.
Because the Court denies Defendants' motion to dismiss, Defendants are directed to engage in the Rule 26(f) conference as required by the Federal Rules of Civil Procedure. Accordingly, Plaintiffs' motion to compel is granted.
For the reasons stated above,
Port Auth. of New York & New Jersey, 768 F.3d at 258. Unlike the EEOC, Plaintiffs here have not had an opportunity to conduct their own detailed investigation into Defendants' pay practices. This difference further undermines Defendants' reliance upon Port Auth. of New York & New Jersey.
