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Barrett v. Forest Labs., Inc.

United States District Court, S.D. New York

August 14, 2014

MEGAN BARRETT, et al., Plaintiffs,

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For Megan Barrett, individually and on behalf of a class of similarly situated female employees, Lindsey Houser, individually and on behalf of a class of similarly situated female employees, Jennifer Jones, individually and on behalf of a class of similarly situated female employees, Jennifer Seard, individually and on behalf of a class of similarly situated female employees, Erin Eckenrode, individually and on behalf of a class of similarly situated female employees, Christy Lowder, individually and on behalf of a class of similarly situated female employees, Julie Smyth, individually and on behalf of a class of similarly situated female employees, Andrea Harley, individually and on behalf of a class of similarly situated female employees, Kimberly Clinton, individually and on behalf of a class of similarly situated female employees, Marie Avila, individually and on behalf of a class of similarly situated female employees, Tracy Le, individually and on behalf of a class of similarly situated female employees, Plaintiffs: David W. Sanford, Katherine Leong, Katie Mueting, PRO HAC VICE, Sanford Heisler,LLP (DC), Washington, DC; Deborah Kristine Marcuse, Jeremy Heisler, Michael Douglas Palmer, Sanford Heisler, LLP, New York, NY; Lubna Aftab Alam, Thomas J Henderson, PRO HAC VICE, Sanford Heisler, LLP, Washington, DC; Stefanie Roemer, PRO HAC VICE, Sanford Heisler, LLP (SF), San Francisco, CA.

For Tracy Le, individually and on behalf of a class of similarly situated female employees, Plaintiff: David W. Sanford, PRO HAC VICE, Sanford Heisler,LLP (DC), Washington, DC; Deborah Kristine Marcuse, Jeremy Heisler, Michael Douglas Palmer, Sanford Heisler, LLP, New York, NY; Lubna Aftab Alam, Thomas J Henderson, PRO HAC VICE, Sanford Heisler, LLP, Washington, DC; Stefanie Roemer, PRO HAC VICE, Sanford Heisler, LLP (San Francisco), San Francisco, CA.

For Forest Laboratories, Inc., Forest Pharmaceuticals, Inc., Defendants: Gary Drew Friedman, LEAD ATTORNEY, Weil, Gotshal & Manges LLP (NYC), New York, NY.

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Ronnie Abrams, United States District Judge.

Plaintiffs are eleven current or former female employees of Defendants Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. (collectively, " Defendants," " Forest" or " the Company" ). In their Second Amended Class Action Complaint (" SAC" ), Plaintiffs allege primarily that Defendants discriminated against female employees with respect to pay and promotions.

Before the Court is Defendants' motion to dismiss each of Plaintiffs' class claims and the majority of their individual claims. In the alternative to dismissing the class claims, Defendants ask the Court to narrow the putative class.

For the following reasons, Defendants' motion is granted in part and denied in part. To summarize: in addition to stating a number of individual claims, the Court concludes that Plaintiffs have plausibly alleged that Defendants have engaged in a pattern or practice of gender-based discrimination with respect to pay and promotions, and that several of Defendants' policies have a disparate impact on women. With one modification, the Court grants Defendants' request to narrow the scope of the putative class.


The Court draws the following facts from the SAC, all of which it assumes to be true for purposes of this motion. See, e.g., Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 290 (2d Cir. 2013).

A. Defendants

Defendant Forest Laboratories, Inc. is " a multi-national corporation engaged in the business of developing, manufacturing, and marketing pharmaceutical products." (SAC ¶ 22.) Its wholly-owned subsidiary,

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Defendant Forest Pharmaceuticals, Inc., is responsible for the " manufacture, distribution, and sales of prescription medicine" for its parent company. (Id. ¶ 23.) Both entities are incorporated in Delaware; Forest Laboratories is headquartered in New York and Forest Pharmaceuticals has eight offices in the state. (Id. ¶ ¶ 22-23.)

B. Plaintiffs

Although many of Plaintiffs' claims are similar--in that all allege some form of gender-based discrimination--the Court details briefly the circumstances surrounding each Plaintiffs employment as alleged in the 126-page SAC.

1. Plaintiff Megan Barrett

Defendants hired Barrett in January 2004 as a Territory Representative.[1] (Id. ¶ 25.) During the period at issue in the SAC, she worked in Scranton, Pennsylvania region until she was terminated on April 26, 2011. (Id.)

As do all but one other Plaintiff, Barrett identifies a " male colleague" and alleges " [u]pon information and belief that he was paid a higher base salary than she was, " even though he did not have superior qualifications, and even though Ms. Barrett and he held jobs requiring the same skills, efforts and responsibilities, which they performed under similar working conditions." (Id. ¶ 30.) She alleges further that the Company's policy " of awarding merit increases as a percentage of salary" exacerbated this pay disparity. (Id. ¶ 31.)

The thrust of Barrett's allegations is that her male manager began to mistreat her after she returned from maternity leave in February 2009--despite her excellent sales record--and continued mistreating her after she returned from another maternity leave in February 2010. Manager performance assessments, known as " Field Trip Evaluations" or " FTE's," are a significant component of an employee's annual review score. (Id. ¶ ¶ 39-41.) Barrett alleges that when she returned from maternity leave in February 2009, her manager began rating her 2.4 or 2.5 on a 5.0 scale--the lowest ratings she had received, and well below the 3.0 or higher she had received before her maternity leave began in " late 2008." (Id. ¶ 40.) These low scores " result[ed] in a reduction in her bonus compensation" and rendered Barrett ineligible to apply for promotions. (Id. ¶ ¶ 41-42.)

This mistreatment allegedly worsened after Barrett returned from maternity leave in February 2010, which led her to contact a human resources representative after she was issued a disciplinary letter in July 2010. (Id. ¶ 50.) Aside from recommending that she document her concerns, Barrett alleges, the Company did not contact her again or investigate her complaint. (Id. ¶ ¶ 50-51.) In December 2010, her manager placed her on " probation," which required her to undertake certain remedial measures, such as submitting weekly self-assessments. (Id. ¶ 52.)

Barrett asserts that she was singled out for such treatment, alleging that she was the only member of her team placed on probation, even though " other team members had performance numbers lower or similar to hers." (Id. ¶ 54.) She further alleges that a male team member committed " a serious infraction," but was not disciplined, and the manager allegedly told this individual " Don't worry, I have your back," (Id. ¶ 56.) Barrett remained on probation even though she continued to " achieve her sales goals" and receive praise from customers. (Id. ¶ ¶ 55-58.)

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Despite her alleged success, Barrett was terminated in April 2011. (Id. ¶ 59.)

2. Plaintiff Lindsey Houser

Defendants employed Houser from June 2003 to November 2010, initially as a Territory Representative and then as a Sales Representative, in several offices in Texas. (Id. ¶ 60.) In addition to identifying male colleagues who were paid a higher base salary despite equivalent qualifications and responsibilities (id. ¶ 63), Houser alleges that she earned certain bonus payments in the quarter before she took maternity leave, but never received those payments because of a Company policy prohibiting representatives " who are on leave for a period of more than six weeks" from collecting " bonuses distributed during the leave period." (Id. ¶ 84).

In her allegations, Houser also describes applying for a promotion while eight months pregnant, asserting that the questions at her interview focused almost exclusively on her pregnancy. (Id. ¶ ¶ 75-76.) Despite being told by a previous supervisor that management would be " crazy" not to promote her, Houser alleges, Defendants instead promoted another employee--who also happened to be pregnant, but was not visibly so at the time of the interview. (Id. ¶ 77.)

The SAC further asserts that Houser's manager began reducing her FTE scores after her return from maternity leave[2] --despite her allegedly " strong performance" --which reduced her annual salary increase and stock options. (Id. ¶ ¶ 95-96.) This manager also allegedly made comments to male colleagues about Houser's breasts (id. ¶ 72), sent her a sexually-suggestive birthday card (id. ¶ 79), and remarked to another employee that " he was not going to hire women anymore because they all get pregnant and go on maternity leave, like Ms. Houser" (id. ¶ 83). After she was denied the opportunity to take a job-share position in her sales territory--although she did temporarily share a position in a different territory--Houser resigned from the Company. (Id. ¶ ¶ 97-103.)

3. Plaintiff Jennifer Jones

Jones worked as a Territory Representative at the Company's Fort Worth, Texas office from January 2008 to September 27, 2010. (Id. ¶ 104.) Like the other Plaintiffs, Jones alleges that a similarly-qualified male, performing a similar job, received a higher base salary. (Id. ¶ 106.) Unlike the nine other Plaintiffs who allege discrimination in base pay, the SAC states precisely how much Jones's male comparator was paid. (Id. ¶ 106.)

Jones alleges that her manager engaged in overt sexual harassment at a work function one evening, which included (1) mouthing to another employee, about Jones, " You need to fuck her" ; (2) remarking to a table of employees, after Jones excused herself to use the restroom, that " he would 'fuck the shit out of her'" and asking why no one had done so yet; (3) walking Ms. Jones back to her condominium and then propositioning her, an overture that she rejected; and (4) " aggressively urg[ing] her not to say anything to anyone" about what happened. (Id. ¶ ¶ 108-10.)

In the following months, the manager continued to confirm with Jones that she

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had not reported the incident. (Id. ¶ 111.) She did not, despite learning that the individual had allegedly harassed other women and that he continued to ask team members about Jones's relationship status. (Id. ¶ ¶ 111 -13.) Eventually, this manager became Jones's direct supervisor, and after he told another manager that Jones " was not a valuable member of the team," Jones finally described the harassment--first to the other manager, then in a written report to the Company's Human Resources (" HR" ) department, and then in a phone call to the Company's " Compliance Hotline." (Id. ¶ ¶ 114-18.)

Over two months after the phone call to the " Compliance Hotline" --during which time Jones continued to report to her alleged harasser (id. ¶ 120)--an HR director interviewed Jones (id. ¶ ¶ 121-22). According to Jones, " the majority of the meeting" was spent discussing her work performance, and she was ultimately placed on " probation" --despite being ranked sixteenth in her region out of one hundred sales representatives. (Id. ¶ 121.) Another individual, who also " acted as a witness on Ms. Jones' behalf during the investigation" was also interviewed and placed on " probation." (Id. ¶ 122.) Jones resigned from the Company five days after her interview. (Id. ¶ ¶ 121,123.)

4. Plaintiff Jennifer Seard

Seard served as a Territory and Specialty Sales Representative in the Waco, Texas region from December 2003 until April 2011. (Id. ¶ 124.) She is the only Plaintiff who does not allege that a male comparator received a higher base salary than her for performing the same work. She does allege, however, that she was denied bonus compensation during her two maternity leaves " based on Forest's policy of denying bonuses to representatives on leave, even for commissions earned before the period of leave." (Id. ¶ 126.)

According to Seard, after she unsuccessfully requested a job-sharing position in March 2010, her manager " began reviewing Ms. Seard's assignments with unusual detail," and told her that she " had no place at Forest." (Id. ¶ ¶ 138-39.) Despite ranking " first in sales" on her team and placing in the top quarter of sales representatives nationwide, her manager gave her some of the lowest FTE rankings she had received since her first year as a sales representative, resulting in lower annual salary increases. (Id. ¶ ¶ 140-41.) Seard sought advice from the Company's HR department; in subsequent discussions with her manager, he would make remarks such as " Are you going to call HR again? I thought we were over that," and " While you're at it, why don't you just copy HR on it?" (Id. ¶ ¶ 145-46.) After continued scrutiny from her manager, Seard resigned in April 2011. (Id. ¶ ¶ 147-52.)

5. Plaintiff Kimberly Clinton

Clinton worked as a Territory Representative in the Company's Norwich, Connecticut territory from May 2011 until November 30, 2012. (Id. ¶ 153.) She alleges that her base salary was lower than a male coworker's, who performed a similar job and was no more qualified. (Id. ¶ 156.)

Clinton's allegations reveal a contentious relationship with her coworkers. According to the SAC, Clinton's male coworkers accused her of forging doctors' signatures and falsifying call information; these accusations ultimately resulted in the Company issuing Clinton a " Formal Warning Letter." (Id. ¶ ¶ 164, 175.) Clinton believed that these accusations were discriminatory, and alleges that her coworkers made comments to her about being a single parent (id. ¶ 165), and that on one occasion, her manager encouraged her to be more " 'positive' and enthusiastic'

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during her calls with doctors," punctuating the phrases by cupping his hands underneath his chest to mimic a woman showing cleavage (id. ¶ 174). Clinton then filed a complaint with the HR department, alleging that her coworkers were discriminating against her and had falsified the accusations. (Id. ¶ 180.)

Clinton further alleges that her manager decreased her FTE scores after she filed the complaint with HR, (Id. ¶ 188.) She eventually resigned on November 30, 2012. (Id. ¶ 192.)

6. Plaintiff Erin Eckenrode

Eckenrode worked as a Territory Representative and Specialty Sales Representative in the Harrisburg and York, Pennsylvania territories from October 2003 until May 2012. (Id. ¶ 48.) She alleges that three male Territory Representatives, from her territory or nearby territories, were paid higher base salaries even though they performed similar jobs and had similar qualifications. (Id. ¶ 198.)

According to Eckenrode, the Company waited almost a decade to promote her, even though she twice applied for a promotion and was the most qualified candidate. (Id. ¶ ¶ 202-206.) On the first occasion, the Company gave the promotion to a male employee; on the second, it promoted a female employee who, unlike Eckenrode, was not pregnant. (Id. ¶ ¶ 202-03, 206.) Eckenrode was promoted on her third try--despite the hiring manager's lament, during Eckenrode's interview for the promotion, that " everybody who works for me gets pregnant." (Id. ¶ ¶ 217-18.) Eckenrode further alleges that once she was promoted to Specialty Sales Representative, she still received a lower base salary than two other male Specialty Sales Representatives, even though the other employees had similar responsibilities and were no more qualified. (Id. ¶ 221.) She resigned in May 2012. (Id. ¶ 223.)

7. Plaintiff Julie Smyth

Smyth served as a Territory Representative and Specialty Sales Representative from May 2005 to August 2012 in the Hershey, Harrisburg, and York territories in Pennsylvania, (Id. ¶ ¶ 224-25.) She alleges that a male colleague, who was also a Territory Representative, received a higher base salary, even though he performed a similar job and did not have superior qualifications. (Id. ¶ 228.) In fact, according to the SAC, this individual did not have any prior sales experience--whereas Smyth had three years--and he joined the Company four months after Smyth did. (Id.)

Smyth was promoted to Specialty Sales Representative the year after she joined the Company. (Id. ¶ 230.) Several years later, she applied for another promotion, but was unsuccessful; according to the SAC, the position was awarded to a male Specialty Sales Representative who, " [u]pon information and belief," had a shorter tenure as a Specialty Sales Representative and who had not performed as well as Smyth had in the year prior to the promotion. (Id. ¶ 234.)

Smyth further alleges that after she learned she did not receive the promotion, her manager asked her to step down from her Specialty Sales Representative position, and stated that if she " did not agree to step down, he would gradually lower her ride-along scores until she received a Letter of Concern that would effectively place her on probation." (Id. ¶ 238.) He then gave her " the lowest ride-along score she had received to date." (Id.) Later that day, Smyth informed her manager's supervisor about these comments; the manager

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subsequently " retracted his request that she step down." (Id. ¶ 240.)

After Smyth returned from maternity leave, she inquired about a job-sharing position. (Id. ¶ 247.) She then applied three times--accepting a voluntary demotion to Territory Representative based on a supervisor's representation that such a demotion was necessary--but did not receive the job-sharing position. (Id. ¶ ¶ 247-57.) Smyth " reluctantly resigned" in August 2012. (Id. ¶ 258.)

8. Plaintiff Marie Avila

Avila served as a Territory Representative in the Company's Los Angeles territory from June 2010 through August 2011. (Id. ¶ 260.) As do most of her co-Plaintiffs, she alleges that a male colleague was paid a higher base salary, despite holding a similar job and despite being no more qualified. (Id. ¶ 263.)

Avila alleges that after she inquired about job-sharing (so she could care for her two young children), her manager denied her request, remarked " Maybe this job isn't for you if you're not committed," and gave her a low FTE score. (Id. ¶ ¶ 267-269.) Subsequently, her manager twice extended her probation--on which all new employees are placed, typically for only their first six months of employment--and also set unrealistic sales goals and assigned Avila certain administrative tasks that he did not assign to other employees he supervised. (Id. ¶ ¶ 270-75.) Avila alleges that before she inquired about job-sharing, she had received only positive feedback (id. ¶ 266), and was ranked in the top five percent of sales representatives nationwide when she received this low score (id. ¶ 273). During a subsequent " ride-along" assessment, the manager asked Avila " if she was planning on having more children." (Id. ¶ 286.)

Because her manager twice extended her probation, Avila was ineligible to apply for a promotion to a Specialty Representative position that opened in her territory. (Id. ¶ 284.) A male employee--who joined the Company at the same time Avila did and, according to the SAC, had a less impressive sales record--obtained the promotion instead. (Id. ¶ 285.)

Avila resigned from the Company in August 2011, " [d]ue to the continued discrimination and retaliation." (Id. ¶ 289.)

9. Plaintiff Andrea Harley

Harley served as a Territory Representative in the Company's Louisville, Kentucky territory from March 2011 until June 2013. (Id. ¶ 291.) A " male colleague," who " was hired by Forest at the same time as Ms. Harley" and who also served as a Territory Representative, was paid a higher base salary, despite being no more qualified and despite performing a similar job. (Id. ¶ 293.)

Harley alleges that her manager initially gave her strong FTE scores, offering positive feedback and telling her that she was " very coachable." (Id. ¶ 295.) After she informed him that she was four months pregnant, however, this positive feedback changed. (Id. ¶ 296.) Her manager began to give her lower FTE scores, called her " unteachable," and reviewed her performance more often than he did that of her team members. (Id. ¶ 296-99, 306.) Eventually, Harley was issued a " Letter of Concern," which placed her on ninety-day probation--even though at the time she was " rated number one among the 400 sales representatives in Forest's 'FPL group." (Id. ¶ 297.)

Harley complained to the Company's HR department about this discriminatory treatment on three separate instances--in August, September, and October 2012. (Id. ¶ ¶ 302, 307, 309.) She did not receive

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a response until January 10, 2013, after she resigned. (Id. ¶ ¶ 310-11.)

10. Plaintiff Christy Lowder

Lowder was hired as a Specialty Representative in the Company's Champaign and Springfield, Illinois territories in September 2010. (Id. ¶ 312.) She identifies three male Specialty Representatives who, " [u]pon information and belief," were paid higher base salaries than Lowder, even though they were no more qualified and performed the same job. (Id. ¶ 315.)

The SAC alleges that one of Lowder's managers, Pennington, " has insinuated that Ms. Lowder's success in the field is due to sexual favors she performs for clients in exchange for prescriptions" and once suggested that she " 'fuck' a doctor." (Id. ¶ 319-20.) Lowder continues by alleging that she has been subjected to degrading remarks from other Territory Representatives (id. ¶ ¶ 317, 321), and that Lowder's supervisor refused to take action after he was notified of this harassment (id. ¶ 322).

The SAC also details Lowder's unsuccessful attempts to apply for promotions. During one such attempt, her manager informed her that she was ineligible to apply because she was on probation for a disciplinary infraction; according to Lowder, two male employees, who were also on probation for the infraction, were permitted to apply for the promotion and one obtained it (the other obtained a different promotion). (Id. ¶ 327.) On another occasion, her manager noted " that he was surprised by the strength of Ms. Lowder's application and asked if her husband had written the application" ; Lowder did not receive that promotion, either. (Id. ¶ 328.)

According to Lowder's allegations, her coworkers were not the only ones who acted inappropriately. The SAC alleges that several of Lowder's clients--both of whom were doctors--made sexually explicit comments and, on one occasion, one of the doctors " leaned into [Lowder], pulled her breast out from her shirt, and attempted to lick it." (Id. ¶ ¶ 330-32.) When Lowder reported these incidents to her manager, he " commented how important it was to make a sale" and insisted " that he did not wish to know about clients' indiscretion" because " if he heard the full extent of such incidents, he would be obligated to report them to management, which could lead those doctors to stop prescribing Forest products." (Id. ¶ ¶ 331-34.) The SAC alleges that Lowder complained about this behavior to HR; although the SAC states that HR initially did not remove the doctors from Lowder's " call panel" (id. ¶ 339), the SAC does not indicate whether the doctors were ultimately removed.

Lowder also alleges that after joining the instant lawsuit, her coworkers stopped communicating with her, and a promotion she applied for was given to another male employee " with far less experience than Ms, Lowder's two-and-[a-]half-years at Forest and ten years as a sales representative in the industry." (Id. ¶ ¶ 337, 344.)

11. Plaintiff Tracy Le

Le was hired in March 2012 as a Territory Representative in the Company's Southern California region, and continued to work at the Company as of the filing of the SAC. (Id. ¶ 347.) Like most of her co-Plaintiffs, she alleges that a " male colleague" is paid a higher base salary, even though he and Le perform the same job and have comparable qualifications. (Id. ¶ 349.)

The SAC alleges that one of Le's coworkers, Steve Yeu, would " 'accidentally' brush his hands over Ms. Le's breasts and touch her leg," and commented " that Ms.

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Le's body could be an asset for sales." (Id. ¶ 351,) When Le informed her manager, Raymond Gerace, of this harassment, Gerace " explicitly instructed Ms. Le not to contact Forest's Human Resources (" HR" ) Department." (Id. ¶ 352.) Le alleges that in the wake of this complaint, not only did Gerace " order[ ] Ms, Le to work even more closely with her harasser going forward," Gerace began to freeze her FTE scores below 3.0 and extended her probation--even though her sales performance placed her near the top five percent of representatives in the nation. (Id. ¶ ¶ 353, 358-59.) According to Le, Gerace refused her requests for constructive criticism and " treat[ed] other female employees under his supervision with hostility," by, for example, making disparaging comments. (Id. ¶ ¶ 363-65.)

Although Le reported Gerace's behavior to HR, at the time of the SAC her probation had been extended again, and she remained ineligible for merit increases, awards, and promotions. (Id. ¶ 375.)

C. Procedural History

Plaintiffs filed their Complaint in the instant action on July 5, 2012, and filed an Amended Complaint on November 5, 2012. (Dkt. nos. 1, 13.) After Defendants moved to dismiss--raising arguments similar to those now before the Court--Plaintiffs sought leave to file the SAC. (Dkt. no. 27.) The Court granted Plaintiffs leave to amend and stated that the SAC " would be Plaintiffs' final opportunity to amend to cure any pleading deficiencies." (Dkt. no. 33.)

The SAC seeks to certify a class (the " Class" ) consisting of " [a]ll female Sales Representatives who are, have been, or will be employed by Forest in the United States from 2008 to the date of judgment. 'Sales Representatives' include Territory Sales Representatives, Field Sales Representatives, Medical Sales Representatives, Professional Sales Representatives, Specialty Sales Representatives, Field Sales Trainers, and Regional Sales Trainers." (SAC ¶ 402.) It also seeks to certify a " Pregnancy Sub-class," defined as " All female Sales Representatives who are, have been, or will become pregnant while employed by Forest in the United States from 2008 to the date of judgment." (Id.) Additionally, the SAC seeks to bring an opt-in collective action under the Equal Pay Act of 1963 (" Equal Pay Act" or " EPA" ) on behalf of " all current, former, and future female Sales Representatives" who were subjected to unequal pay in one of four enumerated ways.[3]

In total, the SAC asserts seven counts: (1) pay discrimination under Title VII of the Civil Rights Act of 1964 (" Title VII" ) on behalf of the Class and all Plaintiffs; (2) promotion discrimination under Title VII on behalf of the Class and all Plaintiffs; (3) pregnancy discrimination under Title VII on behalf of " Class Representatives Ms. Barrett, Ms. Houser, Ms. Eckenrode, Ms.

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Smyth, Ms. Harley, and all members of the Class Against Defendants" ; [4] (4) violation of the Equal Pay Act, on behalf of all Plaintiffs and EPA Collective Action Plaintiffs; (5) violation of the Family Medical Leave Act, on behalf of Plaintiffs Barrett, Houser, and Smyth; (6) retaliation under Title VII, on behalf of Plaintiffs Jones, Seard, Eckenrode, Lowder, and Le; and (7) sexual harassment under Title VII, on behalf of Plaintiffs Jones and Lowder.

The Court notes at the outset that the organization of the SAC makes it difficult to understand the exact nature of many of Plaintiffs' claims. The SAC begins with eighty-nine pages of factual allegations, providing a narrative of each of the eleven Plaintiffs' experiences while employed by Defendants. ( Id. ¶ ¶ 25-376.) Following these allegations, the SAC lists each of the policies or practices--approximately fifteen in total--that it asserts are discriminatory. (Id. ¶ ¶ 377-93.) After class and collective allegations (id. ¶ ¶ 394-435), the SAC conclusorily recites the elements of each of its seven claims (Id. ¶ ¶ 436-495).

Whether intentionally or not, Plaintiffs have left it to the Court to attempt to sort out which policy or practice corresponds to each claim. Although the task is straightforward for some policies or practices, it is more difficult for others. For instance, as described below, the SAC's allegations about Defendants' job-sharing policies could relate to Plaintiffs' pay discrimination claim, their promotion discrimination claim, their pregnancy discrimination claim, or some combination of the three. The SAC does not specify. At oral argument on the instant motion, Plaintiffs twice acknowledged that aspects of the pleadings in the SAC were " inartful." (Jan. 16, 2014 Tr, at 27:5, 38:16.) In the Court's view, this is an understatement.

In spite of the SAC's somewhat haphazard organization, the Court concludes that its factual allegations state a number of plausible claims.


To survive a motion to dismiss, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible if " the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although the Court accepts as true all the facts alleged in the complaint, it need not credit legal conclusions: " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Determining whether the ...

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