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July 25, 1997

IRENE M. DINOLFO, Plaintiff,

The opinion of the court was delivered by: LARIMER

 Plaintiff, Irene M. Dinolfo, commenced this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991), the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). Plaintiff also asserts a claim under the New York Human Rights Law ("H.L."), N.Y. Exec. L. § 296. Plaintiff alleges that defendant, Rochester Telephone Corporation ("RTC"), has discriminated against her on account of her sex and her age, and that defendant has retaliated against her for having complained about that discrimination. Defendant has moved for summary judgment. *fn1"


 The facts as alleged in the complaint are as follows. Plaintiff, who was born in July 1946, was hired by RTC in December 1987 with the job title of Product Coordinator II. From the beginning of her employment with RTC, plaintiff has received less pay than male employees performing the same duties as plaintiff.

 Around December 1993, at which time plaintiff held the position of Channel Consultant Level II *fn2" , RTC began discriminating against plaintiff on account of her age. Her supervisor, Daniel Lazarek, called her into a meeting and informed plaintiff that she was not competent and that she lacked the necessary skills to perform her job. Although plaintiff pointed out to Lazarek that she had always received favorable performance reviews, he made clear to her that she would be terminated unless she left his department. Plaintiff subsequently left Lazarek's department and took a technical position in another department. Plaintiff's Channel Consultant II position was filled by a 32-year-old woman.

 In February 1994, Lazarek gave plaintiff an unfavorable performance evaluation for 1993. This prompted plaintiff to complain to senior management that she was being discriminated against on account of her age and sex. Defendant did little or nothing in response to her complaints. In addition, plaintiff's requests to transfer to certain other positions for which she was qualified were denied, allegedly in retaliation for her complaints. Plaintiff also alleges that at some point after she made those complaints, RTC "sabotaged" her attempt to secure employment with another employer, and that RTC tried to coerce her into withdrawing a discrimination that she had filed with the Equal Employment Opportunity Commission ("EEOC") in June 1994.

 About four months after plaintiff filed her EEOC charge, she was officially reinstated to the position of Marketing Manager. Plaintiff alleges, however, that the position was "essentially downgraded" because she no longer has as much authority as she did before. Complaint P 44.

 Based on these allegations, plaintiff seeks: an award of back pay, front pay and lost benefits; compensatory and punitive damages; an order directing RTC to implement an affirmative action program; and attorney's fees.

 I. Equal Pay Claim

 To state an equal pay claim under the EPA or Title VII, plaintiff must show that: "i) [her] employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions." See Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995). Equal pay claims are generally analyzed according to the same standards under both the EPA and Title VII, although to succeed on a Title VII claim, the plaintiff must also produce evidence of a discriminatory animus. Id. at 1312-13. Once a plaintiff has made out a prima facie case, the burden of persuasion shifts to the employer to prove that the pay disparity is justified by one of four enumerated affirmative defenses. 29 U.S.C. § 206(d)(1); Holt v. KMI-Continental, Inc., 95 F.3d 123, 132 (2d Cir. 1996), cert. denied, 137 L. Ed. 2d 1027, 117 S. Ct. 1819 (1997); Tomka, 66 F.3d at 1310.

 Defendant contends that plaintiff has failed to make out a prima facie case on her equal pay claim. Defendant maintains that the record shows that plaintiff either complained to her supervisors that her pay was inadequate without regard to anyone else's pay, or that she complained of a disparity between her pay and that of her "peers," both male and female. With respect to the male employees that plaintiff has identified, RTC contends that plaintiff has not presented any reliable evidence, aside from her own conclusory assertions that are not based on her personal knowledge, that their job duties were substantially equal to hers. Defendant asserts that the only competent evidence shows. that the duties of these men were substantially different from plaintiff's.

 Defendant further contends that even if plaintiff could make out a prima facie case, she cannot overcome RTC's showing that the pay differential was based on a factor other than sex, which is one of the four affirmative defenses listed in 29 U.S.C. § 206(d)(1). An employer asserting that affirmative defense must additionally prove that the gender-neutral factor was adopted for a legitimate business reason. Tomka, 66 F.3d at 1310.

 RTC contends that although some male employees whom plaintiff has identified had salaries higher than hers, that was the result of salary negotiations between those employees and RTC. RTC contends that it agreed to pay those higher salaries because those male employees had significant work experience and strong academic credentials that were very attractive to RTC at the time they were hired.

 In response, plaintiff states that she is seeking recovery only for the alleged disparity in her pay during the period in which she worked as a Channel Consultant II under Lazarek, which lasted from July 1993 until around the beginning of 1994. During that period, she alleges that two particular men, Ted Brewer and Rick Castle, had the same job title as plaintiff, but earned a higher salary.

 RTC admits that Brewer and Castle had annual salaries of $ 60,000 and $ 52,000 respectively at the time of their hires, while plaintiff's salary at the same time was $ 48,000. However, defendant contends that their higher salaries were justified because of their educational backgrounds and extensive relevant work experience. Defendant notes that Brewer and Castle both held M.B.A. degrees, whereas plaintiff's highest-level degree was a bachelor of arts degree. Defendant also contends that Brewer's and Castle's positions were not substantially similar to plaintiff's because their job responsibilities were different from plaintiff's.

 After reviewing the record and drawing all inferences in favor of plaintiff, I find that she has not established a prima facie case on her equal-pay claim. Although there may have been some similarities between her duties and those of Brewer and Castle, "jobs which are 'merely comparable' are insufficient to satisfy a plaintiff's prima facie burden." Tomka, 66 F.3d at 1310. Instead, the two positions must be "substantially equal." Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 114 S. Ct. 1612, 128 L. Ed. 2d 339 (1994). Although "the test is one of substantiality, not entirety, ... in EPA cases 'the standard for determining whether jobs are equal in terms of skill, effort, and responsibility is high.'" Mulhall v. Advance Security, Inc., 19 F.3d 586, 592 (11th Cir.) (quoting Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799 (11th Cir. 1989)), cert. denied, 513 U.S. 919 (1994). Plaintiff has not met her burden of showing substantial equality.

 In support of her claim, plaintiff asserts that she, Brewer and Castle had the same job title: Channel Consultant II. However, "the standard under the Equal Pay Act is job content and ...

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