The opinion of the court was delivered by: SIDNEY STEIN, District Judge
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).
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 ...