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May 28, 1985

CAROLEE KOSTER, Plaintiff, against CHASE MANHATTAN BANK, N.A. and ALLAN ROSS, Defendants

The opinion of the court was delivered by: LEISURE


LEISURE, District Judge:

This is a suit for gender discrimination in employment. Plaintiff Carolee Koster has asserted numerous claims against her former employer, Chase Manhattan Bank ("Chase"), and Allan Ross, her immediate superior at Chase, under federal and state law, seeking injunctive and declaratory relief as well as damages. On January 7, 1983, Judge Goettel, to whom this case was originally assigned, denied defendants' motions to dismiss the complaint. Koster v. Chase Manhattan Bank, 554 F. supp. 285 (S.D.N.Y. 1983). He held that plaintiff had properly alleged a sexual harassment claim before both the EEOC and the Court; the Title VII action could proceed against Ross notwithstanding plaintiff's failure to name him as a respondent in the EEOC complaint; and that Ross was an "employer" within the meaning of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). Judge Goettel permitted Koster to remedy defects in her allegations by repleading. In a footnote to his opinion, Judge Goettel refused to dismiss plaintiff's pendent state law claims. Koster, 554 F. Supp. at 290 n.9.

 Discovery is now complete and defendants have moved for summary judgment. Neither defendant attacks the Title VII claims in Count I. Both, however, challenge the EPA claim in Count II. Ross denies that he is an "employer" with the EPA; additionally, he joins Chase in challenging the EPA claim on grounds of legal insufficiency. Count III is a claim under state and city human rights provisions. Defendants challenged it on grounds of procedural deficiency, and Ross adds that he is in any event not an "employer" under the pertinent provisions. Count IV is directed against Ross alone. Ross sees it as a claim for defamation and moves to dismiss it because of untimeliness and lack of specificity. Koster characterizes it as a claim for prima facie trot.

 Count V, also directed only against Ross, charges intentional infliction of emotional distress. Ross argues that the conduct alleged by Koster does not suffice to make out such a claim. Counts VI and VII allege, respectively, that Chase and Ross wrongfully discharged Koster and breached an implied condition of good faith in her employment contract. Defendants contend that neither action is cognizable under New York law.


 The EPA prohibits employers from compensating employees of one sex at a lower rate than employees of the opposite sex "for equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions," *fn1" except in four situations not relevant here. 29 U.S.C. § 206(d)(1). The work in question must be "equal," not merely comparable; Congress did not intend for courts to compare the value of different jobs. 29 C.F.R. § 800.120 (1984); Hodgson v. Corning Glass Works, 474 F.2d 226, 231 (2d Cir. 1973), aff'd, 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974); Nulf v. International Paper Co., 656 F.2d 553, 561 (10th Cir. 1981). The jobs need not be identical, though. It is sufficient if the job functions are substantially equal. See id.; Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir. 1979), aff'd, 452 U.S. 161, 68 L. Ed. 2d 751, 101 S. Ct. 2242 (1981); Usery v. Columbia Univ., 568 F.2d 953 (2d Cir. 1977). The standard of comparison is actual job content, not job titles or descriptions. Gunther, 623 F.2d at 1309; Marshall v. Building Maint. Corp., 587 F.2d 567, 571 (2d Cir. 1978); Rossini v Ogilvy & Mather, Inc., 597 F. Supp. 1120, 1154 (S.D.N.Y. 1984).

 Defendants argue that plaintiff has not demonstrated the existence of a genuine dispute regarding any fact material to her EPA claim that would warrant a trial on the merits. They say that plaintiff has not been able to point to a single male employee of Chase who performed substantially equal work but was paid more than plaintiff. Plaintiff claims that one Neil Owen was paid a higher salary than she for work substantially equal to hers.

 Owen submitted an affidavit outlining the nature of the job he performed while he was employed at Chase. *fn2" According to Owen's affidavit, 60-80% of his time was spent doing various tasks in connection with updating, refining, and supervising use of Chase's Human Resources Information System ("HRIS") and other of Chases' computer systems. He designed certain system uses and applied statistical analysis. Koster's job entailed a number of tasks, mainly involving human resources planning and policies, but including as well budgeting, staffing and development, and certain special projects. According to Koster, she performed the work of three persons, and discharged all her duties excellently. She says she used the same computer Owen did, and, like Owen, performed statistical analysis. Moreover, she claims that part of Owen's work was transferred to her when he was unable to do it satisfactorily. Additionally, she alleges that a a number of other male Chase employees performed work substantially equal to or less demanding than hers but were paid more than she was. She does not, however, name these other persons. The only named comparant is Owen.

 It is well-settled that on a summary judgment motion I must construe the facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam). That does not, however, mean that the nonmoving party is without obligation when confronted with a summary judgment motion.

In order to defeat a motion for summary judgment supported by proof of facts that would entitle the movant to judgment as a matter of law, the non- moving party is required under Fed. R. Civ. P. 56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried. If facts essential to support opposition to the summary judgment motion are not available, the nonmoving party may seek a continuance under Rule 56(f) to permit affidavits to be obtained or discovery to be had. He may not, however, rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or "upon the mere allegations or denials of his pleading," Fed. R. Civ. P. 56(e).

 L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1(2d Cir. 1985) (emphasis added) (citations omitted). See also Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases."); Quarles v. General Motors Corp., 758 F.2d 839 (2d Cir. 1985) ("Once a moving party has made a showing that no material issues of fact are in dispute, mere conjecture or speculation by the party resisting summary judgment does not provide a basis upon which to deny the motion.") Barnett v. Howaldt, 757 F.2d 23, 26 (2d Cir. 1985) ("In the circumstances, plaintiffs were required to come forward with affidavits, deposition testimony, or other sworn documents containing admissible evidence to show that there was a genuine issue. . ."); JSP Agency, Inc. v. American Sugar Refining Co. of New York, 752 F.2d 56, 59 (2d Cir. 1985) ("Summary judgment. . . will not be denied merely because of conclusory allegations or denials made by the opposing party.").

 Plaintiff's assertions that her work was substantially equal to Owen's are unsupported. *fn3" True, she did point out certain areas of overlap between her tasks and Owen's, but this is not sufficient to show substantial equality under the EPA. "It is the overall job, not its individual segments, that must form the basis for comparison." Gunther, 623 F.2d at 1309. On the record before me, I cannot conclude that Koster's job and Owen's were substantially equal. At most, certain tasks were common to both jobs. But Koster did not do the extensive computer work Owen did, and Owen did not do the sort of planning and policy work Koster did. Koster argues that every level 11 Vice President's job is comparable to hers for EPA purposes. That is not the case. "[T]he fact that jobs performed by male and female employees may have the same total point value under an evaluation system in use by the employer does not in itself mean that the jobs concerned are equal according to the terms of the statute." 29 C.F.R. § 800.121 (1984).

 Discovery in this case has been complete for some time. Presumably, each party has in its possession all the facts it will use at trial. Thus, if at this stage in the litigation, plaintiff can supply no names of higher paid coworkers besides Owen, I must conclude that her claims of higher paid males with equal or lesser duties are no more than speculation. Her failure to produce any specific evidence of males performing work substantially equal to hers at a higher rate of pay, which would raise a genuine issue of material fact, is fatal to her attempt to resist this summary judgment motion. ...

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