Gerbush, but rather consolidated the Buffalo branch with the
Cheektowaga branch, which was managed by John Rummel. Item 13;
Izzo Aff. ¶¶ 22-24.
Shortly after her termination, Gerbush filed a discrimination
complaint with Equal Opportunity Commission ("EEOC"). She
received a Right to Sue letter and filed this suit on October 21,
1997. Gerbush alleges that from 1990 until her termination in
April of 1996, she and other female branch managers were paid
$10,000 to $30,000 less than male managers, in violation of the
EPA, Title VII and the NYHRL. Item 1; Compl. ¶ 8. Plaintiff
further claims that she was denied bonuses because she was a
female, and male managers were awarded bonuses because they were
male, again in violation of the EPA, Title VII, and the NYHRL.
Gerbush seeks back pay equivalent to the salaries paid to
similarly situated male employees, including bonuses. She also
seeks compensatory damages for the loss of her job, attorney's
fees, and injunctive relief.
I. Summary Judgment Standard
Summary judgment is appropriate only where the parties'
submissions "show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). It is the burden of the moving party to demonstrate
initially the absence of material fact. Celotex, 477 U.S. at
323-25, 106 S.Ct. 2548. Once the moving party has satisfied its
burden, the burden then shifts to the non-moving party to produce
"specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). A showing that there is a genuine issue of
fact for trial requires a showing sufficient to establish the
existence of every element essential to the party's case, and on
every element for which the party will bear the burden of proof
Of course, in ruling on a motion for summary judgment, a court
must resolve all ambiguities and draw all reasonable inferences
in favor of the non-movant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985).
The Second Circuit has emphasized that the trial court must be
especially cautious in deciding whether to grant this drastic
provisional remedy in a discrimination case, because the
employer's intent is often at issue, and careful scrutiny may
reveal circumstantial evidence supporting an inference of
discrimination. See Chertkova v. Connecticut Gen. Life Ins.
Co., 92 F.3d 81, 87 (2d Cir. 1996); Gallo v. Prudential
Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d
Cir. 1994). Nonetheless, where the non-movant's evidence is
merely conclusory or speculative, or not significantly probative,
summary judgment should be granted. Knight v. U.S. Fire Ins.
Co., 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).
II. Equal Pay Claim
To establish an equal pay claim under the EPA or Title VII,
plaintiff must demonstrate that: "(i) the 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." Tomka v. Seiler Corp., 66 F.3d 1295, 1310
(2d Cir. 1995); see also Belfi v. Prendergast, 191 F.3d 129,
135 (2d Cir. 1999). Equal pay claims are generally analyzed
according to the same standards under the EPA, Title VII, and the
NYHRL, although on a Title VII and NYHRL claim, the plaintiff
must also produce evidence of a discriminatory animus. See
Dinolfo v. Rochester Telephone Corp., 972 F. Supp. 718, 721
(W.D.N.Y. 1997) (citing
Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)).*fn2
Once the plaintiff establishes a prima facie case, the burden
shifts to the defendant to prove that the disparity is justified
by one of the four affirmative defenses: a merit system, a
seniority system, a system which measures quality or quantity of
production, or a differential based on any factor other than sex.
29 U.S.C. § 206(d)(1); see Dinolfo v. Rochester Telephone
Corp., 972 F. Supp. at 721; see also Holt v. KMI-Continental,
Inc., 95 F.3d 123, 132 (2d Cir. 1996).
In the present case, plaintiff fails to satisfy the second and
third elements of a prima facie case. To satisfy the second
element of the analysis, "[a] plaintiff need not demonstrate that
her job is identical to a higher paid position, but only must
show that the two positions are `substantially equal.'" Tomka,
66 F.3d at 1309 (citing Lambert v. Genesee Hospital,
10 F.3d 46, 56 (2d Cir. 1993)). The test is whether additional labor or
tasks of one job in comparison to another job are substantial.
Lambert, 10 F.3d at 56. If so, the jobs cannot be considered
congruent, and the work performed is not equal as required by the
EPA. Id. Moreover, the standard under the EPA is job content,
and not job description or job title. Tomka, 66 F.3d at 1310.
Here, plaintiff fails to establish that her responsibilities as
manager of Hunt's Buffalo branch were substantially equal to the
responsibilities of the higher-paid male managers. Plaintiff
attempts to rely on the uniform job description that was
distributed to all managers to establish that the jobs were
substantially similar. However, plaintiff's deposition testimony
reveals that the uniform job description is largely irrelevant,
because the job responsibilities of branch managers were
substantially different. At her deposition, plaintiff conceded
that the amount of time required by branch managers differed from
office to office and was largely dependent on the specific
branch's composition levels and their agent population. Item 17;
Exh. C; p. 122. Moreover, plaintiff admitted that the number of
agents varied from office to office, and each branch differed in
size, sales, volume, inventory of units, gross commission
percentages, and level of recruiting. Id. at 208-10. Plaintiff
also admitted during her deposition that the financial
performance of the Buffalo branch was not "comparable" to other
offices; and that if the branches were ranked by performance, the
Buffalo branch would be near the bottom. Id. at 135-36.
In sum, plaintiff concedes that certain managers invested
additional labor depending on the level of business being
conducted at their branch. As such, plaintiff has failed to show
that she, as manager of the financially declining Buffalo branch,
shared substantially similar responsibilities with branch
managers of Hunt's more profitable branches.
Plaintiff also fails to establish that she worked under similar
working conditions as the male managers. Again, the court refers
to plaintiff's deposition testimony, wherein she concedes that
the Buffalo branch was not as viable as Hunt's other branches,
and that the more viable branches required a greater investment
of a manager's time.*fn3 See Item 16; Exh. C; Gerbush Dep. at
¶¶ 122, 135-36, 194, 208-210. Based on these statements,
plaintiff did not perform her job responsibilities under the same
conditions as managers employed at the more profitable branches.
plaintiff fails to make a prima facie showing under the EPA and
Title VII; and therefore, her equal pay claim is dismissed.
Even if plaintiff was capable of establishing a prima facie
case of salary discrimination, defendant is nonetheless entitled
to summary judgment because the record establishes that the pay
disparity between male and female branch managers resulted from a
"Unequal pay for equal work is justified when the payment is
made pursuant to a merit system." Ottaviani v. State University
of New York at New Paltz, 679 F. Supp. 288, 337 (S.D.N.Y. 1988),
aff'd, 875 F.2d 365 (2d Cir. 1989) (citing
29 U.S.C. § 206(d)(1)(ii)). "The merit system must be an organized and
structured procedure whereby employees are evaluated
systematically according to predetermined criteria." Id.
In the present case, Hunt's compensation structure for branch
managers qualifies as a merit or reward system. Absent other
factors such as experience and salary retention, Hunt sets its
base salaries for branch managers at or near 10 percent of the
projected SCD that the manager's branch is likely to earn for the
upcoming year. Item 13, Izzo Aff. ¶ 18; Item 16, Exh. D; Hunt
Deposition at ¶¶ 40-50. In an effort to encourage managers to
increase their branch's SCD, Hunt awards bonuses on a quarterly
and annual basis. The formula for calculating the bonuses is
identical for each branch. Essentially, bonuses are equal to 10
percent of the difference between the actual SCD and the
projected SCD. See Item 17; Exhs. F-O; see also Item 22; Exh.
E; Grieser Dep. at p. 52.
For example, if Hunt expected a particular branch to have a SCD
of $400,000, the base salary of the manager of that branch would
likely be $40,000. If at the end of the fiscal year, the branch
had a SCD amount of $600,000, the branch manager would receive a
$20,000 dollar bonus (i.e., 10 percent of $200,000).*fn4
The financial documents on record indicate that only those
branch managers whose branch earned more the projected SCD
received a bonus. For example, in 1995 Paul Kessler received a
base salary of $73,557.81. Thus, it appears under the formula
that Hunt projected the Orchard Park branch to earn approximately
$700,000. However, the branch only earned a SCD of approximately
$400,000. As a result, Kessler did not receive a bonus for the
In comparison, Carol Grieco had a base salary $65,000 in 1995.
Again, it appears that Hunt projected Grieco's branch, the
Williamsville North Branch, to earn a SCD of $650,000. In 1995,
the Williamsville North Branch actually earned a SCD of close to
$900,000, which resulted in Carol Grieco's receiving a bonus of
$30,741 (i.e., 10 percent of $300,000).
Based on the above, Hunt's overall wage structure for its
branch managers constitutes a merit system under
29 U.S.C. § 206(d)(1)(i). As such, defendant has
shown that the pay disparity results from one of the four affirmative
defenses, and plaintiff's equal pay claims are dismissed.
Defendant's motion for summary judgment is granted, and the
complaint is dismissed.