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March 17, 2004.


The opinion of the court was delivered by: THOMAS McAVOY, District Judge


Plaintiff Sharon Pfeiffer commenced the instant action asserting various claims pursuant to 42 U.S.C. § 1983; 42 U.S.C. § 2000e, et seq. ("Title VII"), 29 U.S.C. § 206, et seq. (the "Equal Pay Act" or "ERA"), N.Y. Labor Law § 194 (the "New York Equal Pay Act") and N.Y. Exec. Law § 296 (the "New York State Human Rights Law" or "HRL"), arising out of her employment with Defendant Lewis County (the "County"). Plaintiff also asserts a common law claim of defamation. Currently pending before the Court are: (1) Defendant John LaDuc's ("LaDuc") motion for summary judgment; (2) Defendants Devere Rumble ("Rumble") and Dale Roberts' ("Roberts") motion for summary judgment; (3) Defendant Gary Jock's ("Jock") motion for summary judgment; (4) Defendants Lewis County, Joann Doney ("Doney"), Ralph Farney ("Farney"), and Roxainna Hurlburt's ("Hurlburt") motion for summary judgment; and (5) Plaintiffs appeal of the January 30, 2004 Order of the Magistrate Judge denying Plaintiff leave to file a Supplemental Second Amended Complaint.


  Plaintiff was hired by the Lewis County Sheriff's Department ("LCSD") as a "Dispatcher/Jail Guard" in 1986. In 1994, the title of Plaintiff's position was changed from "Dispatcher/Jail Guard" to "Dispatcher/Correction Officer" ("D/CO"). Plaintiff's position is a Page 3 civil service position. Jock. SMF at ¶ 8.*fn1 The D/CO position requires Plaintiff to perform the duties of an emergency services dispatcher, serve in the control room (or dispatch center), and to perform certain duties pertaining to the supervision and monitoring of female inmates at the Lewis County Jail. Plaintiff received training as a corrections officer and as an emergency medical dispatcher.

  The primary responsibility of full-time corrections officers ("COs") is to oversee, monitor and supervise inmates being held in the Public Safety Building. LC SMF ¶ 4. Male inmates are housed in the cell block. Id. at ¶ 6. COs are assigned to the cell block and spend their work day in the common area of the cell block. Id. ¶ 5. Female inmates are housed in holding cells, Id. at Id. 7. The holding cells are located outside the cell block across a hallway from the dispatchers' location. Id. at ¶ 8. COs make routine rounds of the cell block and the holding cells outside of the formal cell block. Id. at ¶ 9. COs perform body and strip searches on all male inmates when they return to the cell block. Id. at ¶ 11.

  As the name suggests, D/COs have a dual function — dispatching duties and corrections officer duties. The vast majority of the D/COs day is spent in the dispatch center, a secure room located outside of the cell block. Id. at ¶ 15.*fn2 D/COs normally sit in an office Page 4 chair at a telephone console that they use to perform their functions. Id. at ¶ 16. The D/COs also monitor the female inmates in the holding cells. Id. at ¶ 19. The holding cells are visible from the dispatch center and can be monitored without the D/COs leaving the dispatch center, Id. at ¶ 20. The only time that a D/CO has any contact with a prisoner is if a female prisoner needs to be strip searched or if a female prisoner has a problem that would not be appropriate for a male CO to handle. Id. at ¶ 21. D/COs do not routinely performs rounds of the cell blocks or the holding cells, they do not routinely interact with the male prisoners, and they rarely enter the cell block. Id. at ¶¶ 22-23.

  For purposes of compensation, D/COs are classified as Grade 18 positions and receive between $13.13 and $15.15 per hour. Id. at ¶ 25. COs are classified as Grade 23 positions and receive between $14.92 and $17.55 per hour. Id. at ¶ 26. The pertinent collective bargaining agreement ("CBA") in effect from 1997-1999 provided that "[a] $2.00/hr. increase shall be added to the dispatchers regular rate of compensation while acting as guard to a female inmate. A minimum of 4 hours must be worked exclusive of call in time before compensation will be granted." Pl.'s Ex. 10, p. 7. The 2002-2004 CBA changed this section. That CBA provides that "[i]n the event that a [D/CO] . . . is acting as a Correction Officer with respect to a female inmate, the [D/CO] . . . on duty with the most seniority shall receive a $2.00/hr. increase in her regular rate of compensation." Pl.'s Ex. 18, p. 7. The 2002-2004 CBA further provides that: "[i]n the absence of a . . . shift supervisor in dispatch, . . . the Page 5 employee . . . with the highest seniority shall receive Sergeant's rate of pay, at the same step as the employee's regular pay." Id.

  In October 1999, then Lewis County Sheriff Gary Jock provisionally appointed Plaintiff to be the dispatch supervisor.*fn3 Jock SMF at ¶ 14. At that time, Plaintiff discontinued performing the job responsibilities of a D/CO. Plaintiff was moved out of the control room and placed in an office. Plaintiff did not receive a salary increase for the new position. Jock SMF at ¶ 15. Shortly thereafter, Dennis Lawlee ("Lawlee"), the Sheriff Department's Chief Civil Deputy, announced his intention to retire. Pl.'s SMF at ¶ LC 28. Jock directed Plaintiff to assume some of the work that had been performed by Lawlee. To compensate Plaintiff for this additional work, in February 2000, Plaintiff was given the part-time position of "Secretary to the Sheriff' and paid additional wages. Pl.'s SMF at ¶ 36. During this time, Plaintiff also maintained her position as dispatch supervisor. Id.

  In March 2000, the union filed a grievance alleging that the Sheriff had given Plaintiff a $10,000 per year increase above the negotiated salary level without bargaining with the union. LC SMF at ¶ 29. The union and the County ultimately reached a resolution whereby the County discontinued paying Plaintiff "any wages or salary in excess of that specified by the Collective Bargaining Agreement." Peterman Aff., Ex. K. Pursuant to the settlement, the County could contract with Plaintiff to perform duties in addition to those performed as a D/CO. Id. In June 2000, Plaintiff and the County entered into an Administrative Services Agreement ("ASA") pursuant to which Plaintiff continued to perform Page 6 some of the functions of the Chief Civil Deputy and, in exchange, received $10,000 annually. Peterman Aff., Ex. L.

  By its terms, the ASA expired in May 2001. Id. Although Plaintiff continued to perform work under the ASA beyond May 2001, the County declined to renew the agreement and Plaintiff did not receive any additional compensation for work performed in May, June and July, 2001.

  Plaintiff contends that, throughout her employment at the LCSD, she actively and openly campaigned for pay equality for the D/COs, for supervisor's pay for herself, and for other equal terms and conditions of employment for female employees of the LCSD. Plaintiff alleges that, in response to her efforts, she was confronted by hostility, aggression and malevolence by male members of the LCSD. Plaintiff maintains that, commencing at the time that LaDuc was appointed Undersheriff in June 2000, she was subjected to a campaign of harassment against her and other female employees by LaDuc and Defendants Rumble and Roberts. Plaintiff states that she was subjected to: daily offensive and malicious comments about her appearance; condescending remarks about her and her office; comments referring to her office as the "Barbie House;" comments referring to the female workers as "cute bitches", "ugly bitches" and/or "fat bitches;" disparaging remarks concerning the dispatchers' ages, weight and/or dress; having her work"sabotaged;" demands that she be removed from her supervisory position and replaced with a male employee; and allegations that she was having an affair with Jock, which was claimed to be the reason she was appointed to the Page 7 dispatch supervisor position. Plaintiff further alleges that LaDuc recommended that she wear a D/CO uniform, instead of be permitted to wear "street" clothes.*fn4

  In August 2001, Plaintiff requested to use sick bank time from the Lewis County Sick Leave Bank. Plaintiff contributed to the sick leave bank for over ten years. Her request was denied. In November 2001, Plaintiff was returned to her position as a D/CO and resumed performing the duties attendant to that position.

  As of January 1, 2004, LaDuc again became Undersheriff. On one of his first days back at the LCSD, LaDuc stated to Plaintiff that "I used to be a little prick, but now I'm taking Viagra." LaDuc also has "tapped" Plaintiff in the head. Plaintiff also has been required to work weekends, whereas prior to January 2004, she consistently had all weekends off.


  It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to Page 8 establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). With this standard in mind, the Court will address the defendant's motion.


  a. Expert Witness

  Lewis County seeks to exclude the opinions of Plaintiff's proffered expert witness. Plaintiff retained an expert to provide an opinion concerning whether the D/CO and CO positions are substantially equal, one of the elements of her EPA claim. In support of her conclusion, the expert relied upon the 2002-2004 CBA, documents produced by Defendants pursuant to Plaintiff's discovery demands, the D/CO and CO job descriptions, certain pages from a New York State Commission of Corrections investigation of the LCSD, the LCSD's chain of command, job descriptions from surrounding counties, Plaintiff's Second Amended Complaint, and the expert's one day inspection of the LCSD.

  Rule 702 of the Federal Rules of Evidence provides that:

  If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Page 9

 As the Rule itself provides, the initial inquiry is whether "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." See United States v. Cook, 922 F.2d 1026, 1036 (2d Cir. 1991) ("Expert testimony is only admissible when such testimony is helpful to the trier of fact. . . . Such testimony is unnecessary where the jury is capable of comprehending the facts and drawing the correct conclusions from them. . . . Indeed, the judge in his discretion may exclude expert testimony when it is not helpful to the jury."). The Second Circuit has instructed that "the district court should not admit testimony that is `directed solely to lay matters which a jury is capable of understanding and deciding without the expert's help.'" United States v. Mulder, 273 F.3d 91, 101 (2d Cir. 2001) (quoting United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991)), cert. denied, 535 U.S. 949 (2002): see United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994) ("A district court may commit manifest error by admitting expert testimony where the evidence impermissibly mirrors the testimony offered by fact witnesses, or the subject matter of the expert's testimony is not beyond the ken of the average juror."). It is within the discretion of the trial court to determine whether expert testimony will assist the trier of fact. United States v. Aminy, 15 F.3d 258, 261 (2d Cir. 1994) ("The decision to admit testimony under this Rule is left to the trial court's discretion and will be overturned only if `manifestly erroneous.'") (quoting United States v. Diaz, 878 F.2d 608, 616 (2d Cir. 1989)).

  In this case, the Court finds that, with one limited exception, the proposed expert witness would not be helpful to the trier of fact. The trier of fact is perfectly capable, on its own, to evaluate the various information relied upon by the expert (as outlined above) to ascertain whether the D/CO and CO jobs are substantially equal. See, e.g., Patterson v. Page 10 McLean Credit Union, 805 F.2d 1143, 1147 (4th Cir. 1986) (holding that a jury does not need aid in determining the relative qualifications of clerical employees at a credit union), vacated in part on other grounds, 491 U.S. 164 (1989). There is nothing complicated about the evidence in this case such that it would be helpful to the trier of fact to have assistance from an "expert." For example, the first item in the expert's report is an "Analysis of the Lewis County Sheriff's Department's CO and D/CO Job Descriptions." In this section, Plaintiff's proffered expert simply compares the two job descriptions and then offers her opinion that certain responsibilities imposed only upon the D/CO position "more than offset" certain responsibilities only imposed upon the CO position. The trier of fact is perfectly capable of reviewing the job descriptions and forming its own conclusions concerning the relative equality of the positions without help.

  In the second section of the report, the expert next analyzes "working conditions and hazards." In this section of the report, the expert offers her opinion concerning the relative stresses and hazards of the D/CO and CO positions. Once again, there is nothing in this section that is helpful to the trier of fact. Plaintiff can submit evidence to the trier of fact concerning the risks attendant to the D/CO and CO positions and the trier of fact can weigh any differences. A trier of fact is perfectly capable of understanding the stresses associated with handling emergency calls, multi-tasking, strip searching female inmates, etc. The trier of fact similarly can make its own conclusion concerning whether the stresses and hazards faced by D/COs are equivalent to those faced by the CO. Significantly, the expert's Page 11 conclusion in this regard is not purported to be based upon any scientific, technical or other specialized knowledge, but purely upon the expert's personal opinion.*fn5

  The third, and final, section of the report pertains to how the LCSD establishes its salaries. The proffered expert notes that employers frequently look to other employers to ascertain "external equity" and establish their own internal procedures to assure "internal equity." With respect to "external equity," the proffered expert looked at the job description and pay of similar positions in surrounding counties. Once again, the trier of fact is perfectly competent to review this same information and draw its own conclusions concerning the similarity of job requirements and the equality of pay for similar jobs.

  With respect to "internal equity," the expert notes that because "the LCSD has provided no documents concerning their institutional processes for deciding internal equity . . . it appears that Lewis County lacks any system for classifying jobs and determining the Page 12 internal consistency of compensation. In my opinion, the absence of institutional classification and compensation processes addressing internal salary consistency is a deviation from accepted procedures for both public and private sector employers that leaves the County's salary setting open to subjectivity and could lead to the discriminatory assignment of compensation levels to job titles." It likely is not within the ordinary purview of lay triers of fact whether accepted procedures call for an institutional classification and compensation process to address internal salary consistency. In this regard, expert testimony may be helpful. Accordingly, the Court will allow the expert to testify on this limited issue.

  In sum, the LC Defendants' motion to preclude the expert testimony is granted in part and denied in part. The trier of fact is perfectly capable, without assistance, of reviewing and comparing the various job descriptions and analyzing any evidence concerning the actual job functions of the D/CO and CO and to formulate its own conclusions concerning the similarity (or dissimilarity) of these positions. The trier of fact is similarly capable of understanding and analyzing any external pay equity issues without the help of an expert.*fn6 It would, however, be helpful to the trier of fact to have expert assistance concerning the accepted procedures for determining internal pay equity. Thus, the expert will be permitted to testify on this limited issue of internal pay equity.*fn7 Page 13

  b. Equal Pay Act*fn8

  "To prove discrimination under the Equal Pay Act, a plaintiff must show 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.'" Lavin-McEleney v. Marist College, 239 F.3d 476, 479 (2d Cir. 2001) (quoting Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999)); see also 29 U.S.C. § 206(d)(1).

[T]he EPA does not require a plaintiff to establish an employer's discriminatory intent.
Instead, the EPA makes it illegal for an employer to pay unequal compensation to those of different genders for equal work, "except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1). Once the employer proves that the wage disparity is justified by one of the EPA's four affirmative defenses, "the plaintiff may counter the employer's affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination." Belfi, 191 F.3d at 136 (citing Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526 (2d Cir. 1992)).
Ryduchowski v. Port Auth. of New York and New Jersey, 203 F.3d 135, 142 (2d Cir. 2000).

  1. Whether the LCSD Pays Different Wages to Employees of the Opposite Sex

  The first element of an EPA claim is whether the employer pays different wages to employees of the opposite sex. Here, there is evidence in the record from which a fair-minded trier of fact could reasonably conclude that the LCSD pays different wages to Page 14 employees of the opposite sex. For example, there are male COs who are paid at Grade ...

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