    13-1726
    Chepak v. Metropolitan Hospital


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 13th day of February, two thousand fourteen.

    PRESENT:
               PIERRE N. LEVAL,
               GUIDO CALABRESI,
               GERARD E. LYNCH,
                     Circuit Judges.
    _____________________________________

    Mary Ellen Chepak,

                                Plaintiff-Appellant,

                      v.                                       13-1726

    Metropolitan Hospital,

                     Defendant-Appellee.
    _____________________________________

    FOR PLAINTIFF -APPELLANT:                           Mary Ellen Chepak, pro se,
                                                        Mastic Beach, New York.


    FOR DEFENDANT-APPELLEE:                             Suzanne Colt, Assistant
                                                        Corporation Counsel (Pamela
                                                        Seider Dolgow, on the brief), for
                                                        Michael A. Cardozo, Corporation
                                                        Counsel of the City of New York,
                                                        New York, New York.
       Appeal from a judgment of the United States District Court for the Southern

District of New York (Thomas P. Griesa, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is VACATED and the case is

REMANDED for further proceedings.

       Appellant Mary Ellen Chepak, pro se, appeals from a final judgment dismissing

her complaint alleging violations of the Equal Pay Act (“EPA”), 29 U.S.C. § 206, et seq.,

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the New York Human

Rights Law, N.Y. Exec. Law §§ 296(1)(a), 296(7), pursuant to Federal Rule of Civil

Procedure 12(b)(6). We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal, to which we refer only as

necessary to explain our decision.

       We review de novo a district court’s judgment dismissing an action for failure to

state a claim. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). To survive a motion to

dismiss, a complaint alleging workplace discrimination and retaliation need not allege

specific facts establishing a prima facie case of discrimination under McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Boykin v. KeyCorp, 521 F.3d 202, 212-13 (2d

Cir. 2008), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). Nor must the

plaintiff allege facts sufficient to defeat summary judgment. See Swierkiewicz, 534 U.S.

at 511. At the pleading stage, we consider only whether the complaint includes factual

allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl.

                                               2
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The standard is one of “flexible

plausibility,” Boykin, 521 F.3d at 213 (internal quotation mark omitted), sometimes

requiring a pleader to amplify her complaint with sufficient factual allegations to

“nudge[] [her] claims across the line from conceivable to plausible,” Twombly, 550 U.S.

at 570. In conducting this analysis, we must accept as true all plausible allegations of fact

and draw all reasonable inferences in favor of the plaintiff. Harris, 572 F.3d at 71. When

applying these standards to pro se complaints, we review such complaints with “special

solicitude,” interpreting them to raise the “strongest [claims] that they suggest.”

Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal

quotation marks omitted). Accordingly, a district court “should not dismiss [a pro se

complaint] without granting leave to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated,” Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks omitted), unless such leave to

amend would be futile, id.

       In light of the foregoing principles, we find that the district court erred in

dismissing the complaint for failure to state a claim. Chepak’s complaint, on its face, was

sufficient to give Metropolitan Health fair notice of her claims and the grounds upon

which they rested. See Swierkiewicz, 534 U.S. at 512. “The Equal Pay Act . . . prohibits

employers from discriminating among employees on the basis of sex by paying higher

wages to employees of the opposite sex for ‘equal work . . . .’” Belfi v. Prendergast, 191

F.3d 129, 135 (2d Cir. 1999), quoting 29 U.S.C. § 206(d)(1). To prevail on an EPA

                                               3
claim, Chepak would have to demonstrate 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.” Id. (internal quotation marks omitted). Chepak alleged that she was

given a different title, but required to do the same job for less pay, as her male

predecessors. In light of Chepak’s pro se status, those allegations were sufficient to

survive a motion to dismiss.

       We reach the same conclusion regarding Chepak’s Title VII discrimination claim.1

Chepak’s complaint alleged that she is a woman, that she sought promotion to a status

and pay level held by similarly situated males, and was denied. Especially in light of her

pro se status, those allegations were sufficient to state a claim.

       The district court dismissed Chepak’s EPA and Title VII discrimination claims

based on the job descriptions submitted by Metropolitan Health. While a district court

considering a motion under Rule 12(b)(6) may consider documents upon which the

complaint relies, see, e.g., Leonard F. v. Isr. Discount Bank of N.Y., 199 F.3d 99, 107 (2d

Cir. 1999), we need not decide whether a complaint that alleges employment

discrimination necessarily incorporates by reference the employee’s job description.

Whether or not the job descriptions may sometimes be considered on a motion to dismiss,


       1
         Claims brought under New York State’s Human Rights Law are analytically identical to
claims brought under Title VII. Torres v. Pisano, 116 F.3d 625, 629, n.1 (2d Cir. 1997). We
therefore address Chepak’s Title VII and New York State Human Rights Law claims
simultaneously.

                                               4
it is clear that the job content and not job title or description is the standard for

determining whether there was a violation of the anti-discrimination laws. See Marshall

v. Building Maint. Corp., 587 F.2d 567, 571 (2d Cir. 1978). Even if the job descriptions

were properly considered in reviewing defendant’s motion, the job descriptions at most

raise issues of fact, and do not, by themselves, provide a basis for dismissing Chepak’s

claims.

       The district court correctly concluded that Chepak failed to state a retaliation

claim. However, because, as noted below, Chepak will be allowed to replead on remand,

we conclude that in light of her pro se status, Chepak should be permitted to replead if

she believes that she can cure the deficiencies noted by the district court in dismissing

that claim.

       Finally, the district court correctly concluded that Metropolitan Hospital was not a

proper defendant, but erred in not granting Chepak leave to amend to name the correct

defendant, a technical change that could easily be accomplished.

       Accordingly, we VACATE the judgment of the district court and REMAND the

case with instructions that Chepak be permitted to file an amended complaint.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




                                                5
