Ong v. Deloitte Consulting LLP

Background

Yani Ong sued her former employer, Deloitte Consulting LLP, asserting claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. She alleged that Deloitte discriminated and retaliated against her after she became pregnant and later developed breast cancer. Ong had filed an original complaint in March 2021 and a first amended complaint in June 2021.

More than eighteen months after filing the first amended complaint, Ong sought permission to file a second amended complaint. The proposed amendment would add a claim under Article 6 of the New York State Equal Pay Act. Ong proposed to allege that she was paid less than two named male employees with similar backgrounds and experience. The proposed pleading did not describe those employees’ work, pay, working conditions, or backgrounds beyond the general assertion that their backgrounds and experience were similar to Ong’s.

Legal standard

Under Rule 15(a) of the Federal Rules of Civil Procedure, courts generally should allow a party to amend a pleading when justice requires. A court may deny permission for good reasons, including futility, undue delay, and prejudice to the opposing party. An amendment is futile when the proposed allegations would still fail to state a legally sufficient claim under Rule 12(b)(6), which addresses failure to state a claim.

To state a New York State Equal Pay Act claim, a plaintiff must allege that the employer paid employees of opposite sexes different wages, that they performed equal work requiring equal skill, effort, and responsibility, and that they worked under similar conditions.

Court’s analysis

The court held that the proposed amendment was futile. Ong did not provide facts showing that she and the two male employees performed equal work or worked under similar conditions. The court also noted that Ong’s complaint emphasized that Deloitte valued external-project work more highly and that such work affected salaries, bonuses, and promotion opportunities. The proposed amendment did not allege that Ong and the two male employees were similarly situated in their external-project work.

The court further found that Ong’s statements that Deloitte paid women less than men for equal work, knew about complaints, and failed to investigate or correct the alleged practice were conclusory—that is, they stated legal conclusions without supporting facts. The court observed that Ong’s earlier detailed complaints to Deloitte concerned discrimination based on pregnancy and cancer, not a general practice of unequal pay based on sex.

The court separately found that Ong had waited an inordinate amount of time to seek the amendment. She waited nearly two years after starting the case and more than eighteen months after filing her first amended complaint. The court found that she did not adequately explain why her counsel first identified a potential equal-pay claim in January 2023, particularly because the parties had not yet conducted discovery at that time.

Finally, the court concluded that allowing the amendment would prejudice Deloitte and delay the case. The new claim would involve a different theory of wrongdoing and require additional discovery concerning a broader time period and other employees. Deloitte also indicated that it intended to move to dismiss the proposed pleading, which would cause further delay.

Disposition

Judge Mary Kay Vyskocil denied Ong’s motion to further amend her pleading and directed the Clerk of Court to terminate the motion at docket entry 39. The opinion did not decide whether Deloitte actually violated the New York State Equal Pay Act; it decided only that Ong was not permitted to add the proposed claim on the record presented. The court stated that it would issue a separate order concerning discovery disputes and the deadline for completing discovery.