Cases & Developments

Opinion affirming-in-part and vacating-in-part and remanding summary judgment in favor of the Institute. Plaintiff, a female professor at the Culinary Institute of America, brought pay discrimination claims under the Equal Pay Act (EPA) and the New York Labor Law against the Institution, noting that her pay was several thousand dollars less than that of a male instructor with a similar course load. The Institute’s compensation plan, based partly on a collective bargaining agreement, required fixed pay increases annually but did not provide for equity adjustments. Plaintiff asserted that a disparity based on different starting salaries did not satisfy the EPA’s “factor other than sex” defense because it was not job related. In affirming summary judgment to the Institute on plaintiff’s EPA claim, the Second Circuit held that the statutory language is unambiguous and does not require that the factor other than sex be job related. The court vacated and remanded on plaintiff’s New York Labor Law claim, however, noting that a January 2016 amendment expressly requiring that the factor be “job-related with respect to the position in question.” 

Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a former non-tenured clinical professor in an executive education program in the Fischer College of Business (FCB) at The Ohio State University who also owned a private consulting company, brought a discrimination claim against the University after she was terminated for violations of its Conflicts of Interest policies. The termination occurred following an investigation found that she provided training services to a government agency with which FCB had developed a customized executive education program. Plaintiff identified five comparators within FCB who had each provided similar independent consulting services but had not likewise faced investigation. In denying the University’s motion for summary judgment, the court ruled that whether the comparators’ conduct was distinguishable from plaintiff’s and whether the University lacked sufficient notice of the comparators’ activities to motivate investigation were properly questions for a jury. It also found that testimony that the University had resolved similar situations informally and conflicting testimony regarding the Dean’s involvement with directing the investigation were sufficient to raise jury questions as to pretext.  

Opinion & Order granting the University’s Motion for Summary Judgment.  Plaintiff, an employee of John Jay College of the City University of New York (CUNY), brought discrimination claims against CUNY and a former supervisor, alleging that the former supervisor made multiple unwanted sexual advances, subjected her to verbal outbursts, and subjected her to vulgar and insulting comments about her appearance and related to her African heritage.  After previously dismissing many of plaintiff’s claims, the court granted CUNY’s motion for summary judgment on her discrimination claims, finding, first, that CUNY could not be held vicariously liable for the former supervisor’s actions because he never had the power to do more than recommend discipline.  It further held that plaintiff’s claim that CUNY took insufficient remedial action to address his conduct also failed because the record showed that CUNY responded promptly and proportionately to each of plaintiff’s complaints.  The court permitted her state-law claims against the professor to proceed, finding multiple questions of fact regarding his conduct.