The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
This action is a broad-based challenge to alleged sex discrimination in compensation by the County of Nassau and other related defendants. Plaintiffs seek injunctive relief, back pay and other damages under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq ("Title VII"), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"). Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1) and (6). For the reasons that follow, defendants' motion is granted only with respect to the EPA claims of plaintiffs Goldberg, Jordan and Whitely, and the Title VII claims of all of the plaintiffs insofar as they seek relief under the disparate impact theory. in all other respects, defendants' motion is denied.
The plaintiffs in this action include two affiliated unions, the American Federation of State, County and Municipal employees, AFL-CIO ("AFSCME"), an international labor union, and the Civil Service Employees Association, Region I/Local 1000 ("CSEA"), a union representing more than 13,800 employees of the County of Nassau. The other ten named plaintiffs are eight female and two male employees of Nassau County. Plaintiffs seek to bring this suit as a class action on behalf of
all employees, male and female, employed within the applicable limitation period by the County of Nassau in historically female sex-segregated job classifications in the classified service. Historically female classifications include all classifications in an occupational group or job family for which the entry level job classification is or ever has been 70% or more female.
First Amended Complaint ("the Complaint"), P3(B).
The defendants include the County of Nassau and certain of its officers being sued in their official capacities with respect to the compensation of Nassau County employees.
Defendants' motion to dismiss is directed at the claims of the ten named individual plaintiffs. The Complaint is far from a model of clarity or precision with respect to the individual claims, but I will attempt to summarize those claims as succinctly and accurately as possible. It is alleged with respect to each individual plaintiff that the employee occupies a specific job classification that is maintained by defendants as a "historically female classification." The allegations with respect to each individual then set forth two claims, in substantially identical form for each plaintiff, which will be referred to as the "equal pay" and "discrimination" claims for purposes of convenience in summarizing the Complaint.
The equal pay claims for each plaintiff generally allege that the named plaintiff performs duties which require substantially equal skill, effort and responsibility as the duties of employees in a certain other job classification, but the plaintiff is paid less than those other employees. The discrimination claims generally allege that defendants have discriminated in the compensation paid to occupants of the named plaintiff's job classification by paying them less than is paid to employees in other historically male job classifications which require an equivalent or lesser composite of skill, effort, responsibility and working conditions.
The specific allegations concerning each individual plaintiff may be summarized as follows:
Rita Wallace is employed as a Registered Nurse III in the Department of Social Services. Her equal pay claim alleges that she is paid less than male Sanitarian III's "in the same establishment." The discrimination claim alleges that Registered Nurse III's are paid less than Probation Officer II's and Duplicating Machine Operators. Complaint, P10.
Rachel Braver is employed as an Assistant Detective Investigative Aide in the District Attorney's Office. Her equal pay claim alleges that she is paid less than male Assistant Process Servers "in the same Department and establishment." The discrimination claims alleges that Assistant Detective Investigative Aides are paid less than Automotive Mechanic's Aides, Morgue Attendant I's and Groundskeeper I's. Complaint P11.
Odessa Colvin is employed as a Domestic Worker II in the Department of General Services. It is alleged that prior to 1967, Colvin was classified as a Cleaner and, pursuant to a classification study done by the consulting firm of Cresap, McCormack and Paget, female Cleaners were reclassified as Domestic Workers and male Cleaners were reclassified as Custodians. Colvin's equal pay claim alleges that she is paid less than male Custodians "in the same Department and establishment." The discrimination claim alleges that Domestic Workers are paid less than Caretakers and Laborer I's. Complaint P12.
Erna Fluhr is employed as a Clerk Typist II in the Sheriff's Department. Her equal pay claim alleges that she is paid less than "certain male Correctional Officers in the same Department and establishment." The discrimination claim alleges that Clerk Typist II's are paid less than Equipment Operator I's and Laborer II's. Complaint P13.
Dorothy Garage is a Correctional Clerk II in the Sheriff's Department. Her equal pay claim alleges that she is paid less than her male predecessor "in the same Department and establishment." It is further alaleged that she is performing the duties of a Correctional Clerk III, but because she is a woman, the County has refused to reclassify her. The discrimination claim alleges that Correctional Clerk II's are paid less than Executive Chauffeur II's and Probation Officer I's. Complaint P14.
Laurie Gillibertie is employed as a Caseworker I in the Department of Social Services. her equal pay claim alleges that she is paid less than Probation Officer I's "in the same establishment." The discrimination claim alleges that Caseworker I's are paid less than Food Inspector I's and Mechanical Drafter I's. Complaint P15.
Linda Kelly is employed as a Police Communications and Teletype Operator in the Department of Police. Her equal pay claim alleges that she is paid less than male Fire Communications Technician I's "in the same establishment." The discrimination claim alleges that Police Communications and Teletype Operators are paid less than Groundskeeper I's and Greenskeeper I's. Complaint P16.
Steven Goldberg was employed as a Social Welfare Examiner I in the Department of Social Services and was "recently transferred" to the position of Probation Officer Trainee. There is no equal pay claim for Goldberg. The discrimination claim related to Goldberg alleges that Social Welfare Examiner I's are paid less than Machinists, Masons and Painters. Complaint P17.
Fred Jordan is employed as a Caseworker I in the Department of Social Services. There is no equal pay claim for Jordan. The discrimination claim related to Jordan alleges that Caseworker I's are paid less than Food Inspector I's and Mechanical Drafter I's.
Lois Whiteley is employed as a Food Service Worker I in the Department of Social Services. There is no equal pay claim for Whiteley. The discrimination claim related to Whiteley alleges that Food Service Worker I's are paid less than Morgue Attendant I's and Groundskeeper I's. Complaint P19.
The Complaint further alleges that on May 23, 1983, plaintiffs AFSCME, CSEA, Braver, Fluhr, Garage and Goldberg filed timely written charges with the Equal Employment Opportunity Commission ("EEOC"). On April 18, 1984, the EEOC issued Notices of Right to Sue to all of those plaintiffs. The EEOC charges and Right to Sue notices were annexed as exhibits to the Complaint. Complaint P20.
B. The Catterson Affidavit
When defendants filed notice of this motion, they also submitted a memorandum of law in support of the motion and an affidavit of James M. Catterson, Jr., an attorney for defendants. Plaintiffs subsequently cross-moved to exclude the Catterson affidavit on the grounds that the affidavit is "defective" and that it "does not materially assist the Court in the disposition of the action." Plaintiff's Memorandum in Support of Motion to Exclude Affidavit of James M. Catterson, at 1. At oral argument on these motions, plaintiffs' counsel stated that it was prepared to withdraw the motion to exclude to the extent that the affidavit is not offered as proof of facts. Transcript of Oral Argument on August 3, 1984, at 28.
I have carefully reviewed the Catterson affidavit to determine whether any or all parts of the affidavit may be concisdered in conjunction with defendants' motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure. While most of the affidavit contains nothing more than legal arguments, paragraphs 12, 13 and 14 contain statements of facts which do not appear in the Complaint. In two recent decisions, the Second Circuit sternly warned against considering facts presented outside of the pleadings in conjunction with a 12(b)(6) motion:
[T]he district court [considering a 12(b)(6) motion] must limit itself to a consideration of the facts that appear on the face of the complaint. If the court considers any matters outside of the complaint, it must treat the motion as one for summary judgment and proceed under Fed.R.Civ.P. 56, giving the party opposing the motion notice, an opportunity to submit pertinent material and, if need be, conduct discovery.
Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984); Goldman v. Belden, 754 F.2d 1059, 1065-67 (2d Cir. 1985). Conversion to a motion for summary judgment is mandatory if the court considers matters outside of the pleadings. Goldman, 754 F.2d at 1066. The court has complete discretion, however, to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a 12(b)(6) motion. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1366, at 678 (1969). The court's belief as to whether discovery is necessary before the ...