United States District Court, S.D. New York
August 22, 2005.
SAFORA M. LIFRAK, Plaintiff,
NEW YORK CITY COUNCIL, Defendant.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
This action stems from gender and religious discrimination that
Safora M. Lifrak allegedly experienced as an employee of the New
York City Council. Lifrak asserts a claim pursuant to the Equal
Pay Act, 29 U.S.C. § 206(d), as well as several claims pursuant
to the New York State Human Rights Law and the New York City
Administrative Code. The Council has moved to dismiss the
complaint for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1) and failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). The Council's motion pursuant to
Fed.R.Civ.P. 12(b)(1) is granted, because Lifrak has not met her
burden to show that she has statutory standing to pursue her sole
The facts as alleged in the complaint are as follows.
Lifrak has been employed since 1993 as an attorney in the
office of the General Counsel to the New York City Council.
(Compl. ¶ 9). From the start of her tenure with the City Council
until 2002, she worked as employment law counsel, which required
her to investigate employment discrimination concerns, advise on
disciplinary matters, and supervise staff. (Id. ¶ 10). In that
capacity, Lifrak also conducted training seminars and drafted
civil rights legislation. (Id.). She currently serves as
General Counsel to the Council's Committee on Standards and
Ethics, a position she has held since early 2002, and as Director of the Office of Equal Employment Opportunity
Counsel, a position she assumed in February of 2004. (Id. ¶
11). These roles involve advising Council members on legal and
policy issues relating to the workplace. (Id.).
Starting in early 2002, Lifrak experienced a series of
incidents in which a councilmember, Allan Jennings, allegedly
harassed her on account of her gender and religion. Those alleged
incidents are set forth in detail in the complaint (see id.
¶¶ 12-25), but their recitation here is unnecessary in light of
the Court's conclusion that it lacks subject matter jurisdiction.
Lifrak maintains that she lodged complaints regarding the
mistreatment, which were ignored, and that Council Speaker
Gifford Miller and General Counsel Thomas L. McMahon retaliated
against her for drawing attention to the problem. (See id. ¶¶
25-42). Lifrak also alleges that her "salary is substantially
lower than that of the male lawyers performing the same or
similar work." (Id. ¶ 30).
Before addressing the merits of a given action, a federal court
must consider the threshold question of whether it has subject
matter jurisdiction to hear the case. See United Republic Ins.
Co., in Receivership v. Chase Manhattan Bank, 315 F.3d 168,
170-71 (2d Cir. 2003); Concourse Rehab. & Nursing Ctr., Inc. v.
DeBuono, 179 F.3d 38, 43 (2d Cir. 1999). Consequently, the
Court's analysis of this motion to dismiss the complaint begins
with the Council's contention that the Court lacks subject matter
jurisdiction over Lifrak's claims.*fn1
A. The Fed.R.Civ.P. 12(b)(1) Standard
"A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it."
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also
Fed.R.Civ.P. 12(b)(1). The burden rests on the party invoking the
court's authority to establish that the court possesses subject
matter jurisdiction over the action. See Shenandoah v.
Halbritter, 366 F.3d 89, 91 (2d Cir. 2004). That party must show
by a preponderance of the evidence that subject matter
jurisdiction exists. See Luckett v. Bure, 290 F.3d 493, 497
(2d Cir. 2002). In reviewing a motion to dismiss for lack of
subject matter jurisdiction, a court may consider material
outside the complaint. See Makarova, 201 F.3d at 113; Europe
and Overseas Commodity Traders, S.A. v. Banque Paribas London,
147 F.3d 118, 121 n. 1 (2d Cir. 1998).
B. Statutory Standing
According to the Council, the Equal Pay Act, 29 U.S.C. § 206(d)
pursuant to which Lifrak brings her only federal claim does
not provide a right of action for someone, such as Lifrak, who is
employed by a local legislature and not subject to civil service
laws. The Council therefore contends that Lifrak is deprived of
statutory standing, a jurisdictional prerequisite to the Court's
adjudication of this dispute. See Lerner v. Fleet Bank, N.A.,
318 F.3d 113, 127 (2d Cir. 2003). Lifrak's complaint must be
dismissed because she has failed to satisfy her burden to show by
a preponderance of the evidence that she has statutory standing.
1. Statutory Standing As a Jurisdictional Prerequisite
There are generally two aspects to standing, constitutional
standing pursuant to Article III of the Constitution and
prudential standing, which involves "`judicially self-imposed
limits on the exercise of federal jurisdiction. . . .'" Lerner,
318 F.3d at 126 (quoting Allen v. Wright, 468 U.S. 737, 751,
104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984)). "Prudential
considerations include `the general prohibitions on a litigant's
raising another person's legal rights, the rule barring
adjudication of generalized grievances more appropriately
addressed in the representative branches, and the requirement
that a plaintiff's complaint fall within the zone of interests
protected by the law invoked.'" Id. (quoting Allen, 468 U.S. at 751). Included among
prudential considerations is the principle of statutory standing.
It is beyond cavil that constitutional standing imposes a
jurisdictional prerequisite to suit. Id. at 126-27. Similarly,
"prudential considerations of standing are also generally treated
as jurisdictional in nature. . . ." Id. at 127; see also
Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir. 1994)
(noting that "[t]he concept of standing even in its prudential
dimension is a limitation on federal court jurisdiction")
(citation and quotation marks omitted) (emphasis in Thompson).
The U.S. Court of Appeals for the Second Circuit has held that an
exception to that general rule exists "if merits issues are so
intertwined with the standing issue that any distinction becomes
`exceedingly artificial.'" Lerner, 318 F.3d at 127-28 (quoting
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 n. 2,
118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)). Here, the relevant
statutory standing considerations are sufficiently distinct from
the merits that adherence to the general rule is warranted.
Lifrak has not argued otherwise. Accordingly, the Court has
treated Lifrak's establishment of statutory standing as a
jurisdictional prerequisite to the continuation of this action.
See id. at 127.
2. Lifrak Has Failed to Show that She is an Employee Within the
Contemplation of the Equal Pay Act's Private Right of Action
The Equal Pay Act, 29 U.S.C. § 206(d), was enacted as an
amendment to the Fair Labor Standards Act ("FLSA"). See
Northwest Airlines, Inc. v. Transp. Workers Union of Am.,
AFL-CIO, 451 U.S. 77, 79 n. 1, 101 S. Ct. 1571, 67 L. Ed. 2d 750
(1981); Anderson v. State Univ. of N.Y., 169 F.3d 117, 119 (2d
Cir. 1999), vacated on other grounds, 528 U.S. 1111,
120 S. Ct. 929, 145 L. Ed. 2d 807; Frasier v. Gen. Elec. Co.,
930 F.2d 1004, 1007 (2d Cir. 1991). "As part of the FLSA, the [Equal Pay
Act] utilizes the FLSA's enforcement mechanisms and employs its
definitional provisions." Anderson, 169 F.3d at 119. The FLSA
provides the following private right of action that entitles
individuals to enforce the Equal Pay Act: "Any employer who
violates the provisions of [the Equal Pay Act] shall be liable to
the employee or employees affected. . . ." 29 U.S.C. § 216(b). To
be able to sue under section 216(b) of the FLSA, a plaintiff must be an
"employee" within the contemplation of that act. See
Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240,
1248 (11th Cir. 2003); United Food & Commercial Workers Union,
Local 1564 of N.M. v. Albertson's, Inc., 207 F.3d 1193, 1200
(10th Cir. 2000).
The definitions of terms in the FLSA apply to the same terms
when referenced in Equal Pay Act claims. See 29 C.F.R. § 1620.8
("The words `employer,' `employee,' and `employ' as used in the
EPA are defined in the FLSA."); Birch v. Cuyahoga County Probate
Court, 392 F.3d 151, 161 (6th Cir. 2004); Anderson,
169 F.3d at 119; Brewster v. Barnes, 788 F.2d 985, 990 n. 7 (4th Cir.
1986); Marburger v. Upper Hanover Township,
225 F. Supp. 2d 503, 507 (E.D. Pa. 2002); Hofmister v. Miss. State Dep't of
Health, 53 F. Supp. 2d 884, 886 (S.D. Miss. 1999); see also
Donovan v. K F C Servs., Inc., 547 F. Supp. 503, 505 (E.D.N.Y.
1982). The FLSA's definition of "employee" provides that certain
government workers are not within the ambit of the statute. See
29 C.F.R § 1620.1(a)(2) ("The [Equal Pay Act] covers all state
and local government employees unless they are specifically
exempted under section 3(e)(2)(C) of the FLSA[,]" which is
codified at 29 U.S.C. § 203(e)(2)(C).). The term "employee" does
not include any individual:
(i) who is not subject to the civil service laws of
the State, political subdivision, or agency which
employs him; and
. . .
(V) is an employee in the legislative branch or
legislative body of that State, political
subdivision, or agency. . . .
29 U.S.C. § 203(e)(2)(C).
Lifrak is an employee of the New York City Council, the
principal legislative body of the City of New York, a political
subdivision of the State of New York. See New York City Charter
§ 21 ("There shall be a council which shall be the legislative
body of the city."); (Compl. ¶ 9). As an employee of the Council, Lifrak is covered by the "legislative
body" provision in section 203(e)(2)(C)(ii)(V).
Lifrak contends that the "legislative body" provision does not
apply to claims brought pursuant to the Equal Pay Act. In support
of that contention, she argues that neither the text of the
amendment that created the "legislative body" provision, Pub.L.
99-150, 99 Stat. 787 (1985), nor the corresponding legislative
history, specifically refers to the Equal Pay Act. Nevertheless,
the Equal Pay Act operates within the enforcement framework of
the FLSA, and the FLSA's definitional provisions apply to the
Equal Pay Act. See 29 C.F.R § 1620.1; Northwest Airlines,
451 U.S. at 79 n. 1; Anderson, 169 F.3d at 119; Frasier,
930 F.2d at 1007. Although the Court has an obligation to construe the
Equal Pay Act liberally, see Tony & Susan Alamo Found. v.
Sec'y of Labor, 471 U.S. 290, 296, 105 S. Ct. 1953,
85 L. Ed. 2d 278 (1985), Lifrak fails to point to anything in the statutory
language or the legislative history that supports the conclusion
that Congress intended to exclude the "legislative body"
provision of the FLSA's definition of employee from applying to
the Equal Pay Act. See Anderson, 169 F.3d at 119-20 (noting
that when Congress amended the FLSA's private right of action in
1974, "the scope of the [Equal Pay Act] was extended as well[,]"
because the Equal Pay Act is part of the FLSA).
Section 203(e)(2)(C)(ii)(V) applies to Lifrak as an employee of
the Council. If as provided in section 203(e)(2)(C)(i), she is
also "not subject to the civil service laws of the State,
political subdivision, or agency which employs [her]," she is not
an "employee" pursuant to the FLSA, see
29 U.S.C. § 203(e)(2)(C), and therefore lacks standing to bring her Equal Pay
Act claim. See 29 U.S.C. § 216(b). The following Department of
Labor regulation provides instructive guidance on what type of
state laws are contemplated by the term "civil service laws" in
The term "civil service laws" refers to a personnel
system established by law which is designed to
protect employees from arbitrary action, personal
favoritism, and political coercion, and which uses a
competitive or merit examination process for
selection and placement. Continued tenure of employment of
employees under civil service, except for cause, is
29 C.F.R. § 553.11(c). In order to maintain her claim, Lifrak
must demonstrate by a preponderance of the evidence that she is
subject at least to some extent to those New York laws that
create the type of protective regime described above.
The New York Civil Service Law divides government employees
into two categories: classified and unclassified. See N.Y. Civ.
Serv. L. §§ 35, 40.*fn2 At oral argument in connection with
this motion, Lifrak conceded, as she must, that she is an
unclassified employee. The case law that exists holds that
unclassified employees are not subject to the State's civil
service laws. See County of Chautauqua v. Chautauqua County
Employees' Unit 6300 of Local 807 of the Civ. Serv. Employees'
Assoc., Inc., Local 1000, AFSCME, AFL-CIO, 181 A.D.2d 1052,
1052-53, 581 N.Y.S. 2d 967 (4th Dep't 1992) ("Employees of county
boards of election are in the unclassified civil service and are
not subject to civil service laws and regulations, including
section 75 of the Civil Service Law."); Stowe v. Bd. of
Supervisors of Rensselaer County, 236 A.D. 212, 216,
259 N.Y.S. 503 (3d Dep't 1932) (discussing that in Matter of Ryan v. Vars,
224 A.D. 773, 230 N.Y.S. 903 (1928), "Ryan was decided by us to
be a legislative employee and, therefore, in the unclassified
service and not subject to the Civil Service Law."), rev'd on
other grounds, 260 N.Y. 662, 184 N.E. 136 (1932).
More specifically, several New York State courts have held that
unclassified employees are not entitled to pre-termination
hearings, as required by section 75 of New York's Civil Service
Law. See, e.g., Berg v. Gerber, 54 N.Y. 2d 854, 856,
428 N.E. 2d 398, 444 N.Y.S. 2d 66 (1981) ("[A] person in the unclassified
civil service is not protected by section 75 of the Civil Service
Law against dismissal without a hearing or for other than
misconduct or incompetency. . . ."); In the Matter of Ragone, 194 A.D. 2d 731, 731, 600 N.Y.S. 2d 89 (2nd Dep't 1993) ("The
petitioner was not entitled to a pretermination hearing pursuant
to Civil Service Law § 75 since she held an unclassified and
at-will position."); County of Chautauqua,
181 A.D.2d at 1052-53; Parr v. Onondaga County Legislature,
529 N.Y.S. 2d 672, 673, 139 Misc. 2d 975 (Sup.Ct. Onondaga County 1988) (As an
unclassified civil servant, petitioner was an at-will employee of
the county legislature.). Cf. 4-129 Labor and Employment Law §
129.06 (Matthew Bender & Co. 2005) (noting that in the federal
civil service, "excepted" employees "do not fall within the scope
of the civil service laws and are defined as unclassified
Lifrak has proffered no colorable basis neither evidentiary
nor legal nor in logic for concluding that she is subject to
the civil service laws of New York. Lifrak maintains that simply
because unclassified employees are referred to in the N.Y. Civil
Service Law, see, e.g.,, §§ 35, 40, they are "part of" the
civil service, see Carow v. Bd. of Educ., 272 N.Y. 341,
346-47, 6 N.E. 2d 47 (1936), and therefore are also "subject to"
the civil service laws, even if, as Lifrak admits, they are "not
entitled to all of the protections of the Civil Service
Laws. . . ." (Pl.'s Supp. Mem. in Opp. to Def.'s Mot. to Dismiss
That argument fails to satisfy Lifrak's burden. In light of the
case law set forth above and the fact that "all elected
officials," as well as "all offices filled by appointment of the
governor" fit into the unclassified category, see N.Y. Civ.
Serv. L. § 35, unclassified status cannot alone render an
individual subject to the civil service laws of New York as
contemplated by the FLSA. After all, elected officials are
clearly not beneficiaries of a "personnel system established by
law which is designed to protect employees from arbitrary action,
personal favoritism, and political coercion, and which uses a
competitive or merit examination process for selection and
placement." 29 C.F.R. § 553.11(c); see also Kato v. Ishihara,
360 F.3d 106, 114 & n. 5 (2d Cir. 2004) (explaining that among
federal employees, political appointees are categorized as
members of the unclassified civil service even though they are not subject to competitive examinations or
protections from termination). Moreover, elected officials are
not ensured "[c]ontinued tenure of employment . . . except for
cause. . . ." Id.
Lifrak has failed to meet her burden to show that she has
statutory standing to assert her claim. As an employee of a
legislative body, she cannot bring a private right of action
pursuant to the Equal Pay Act if she is not subject to the civil
service laws of New York. See 29 U.S.C. §§ 203(e)(2)(C),
216(b). In response to defendant's motion pursuant to
Fed.R.Civ.P. 12(b)(1), Lifrak has failed to make any showing that she
is subject to New York's civil service laws. Accordingly, she
lacks statutory standing to pursue her Equal Pay Act claim and it
need be dismissed for lack of subject matter jurisdiction. The
Equal Pay Act claim is Lifrak's only claim brought pursuant to
federal law and the Court declines to exercise its supplemental
jurisdiction over her remaining state law claims. See
28 U.S.C. § 1367(c)(3).
The Council's motion to dismiss the complaint is granted on the
grounds that this Court lacks subject matter jurisdiction over
Lifrak's only federal claim.
Lifrak has requested leave to amend her complaint to assert a
claim pursuant to the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution, and the Council has requested
the opportunity to oppose that request. The Council may submit a
memorandum on that issue by August 29, 2005. Lifrak may reply on
or before September 6, 2005.