BEBERMAN v. USA

Filing 74

UNREPORTED ORDER denying 68 Motion to Dismiss - Rule 12(b)(6). Signed by Judge Edward H. Meyers. (cmh) Service on parties made.

In the United States Court of Federal Claims
No. 17-179 C
Filed: March 29, 2024
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JULIE BEBERMAN,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
Julie Beberman, pro se.

Margaret Joy Jantzen, U.S. Department of Justice, Civil Division, attorney of record, for the
United States.
ORDER
Julie Beberman began working for the United States Department of State as a Foreign
Service Officer in March 2011. ECF No. 47 ¶ 6. On the same day, John Elliott began in the
same role, assigned to a different post. Id. Throughout their assignments, Beberman and Elliott
received comparable pay and benefits. Id. at ¶ 30. Beberman and Elliott were also denied tenure
by the Commissioning and Tenure Boards at the same time in the summers of 2014 and 2015, as
well as the winter of 2015. Id. at ¶ 31. Because they were on the same timeline, both Beberman
and Elliott ended their limited career appointments on March 27, 2016. Id. at ¶¶ 32, 38. Up to
this point, there is no allegation that Beberman and Elliot were treated disparately.
This is where Beberman’s and Elliot’s paths diverge. After she was denied tenure,
Beberman received a “Separation Order,” and “the State Department directed her to return to the
United States to work at the State Department’s headquarters in Washington, D.C.” Id. at ¶¶ 33,
38. Elliott remained overseas, however, where he “received the same benefits package as he had
received before he was denied tenure.” Id. at ¶ 34. Later, Elliott received a “Permanent Change
of Station Order,” which included an overnight stop when traveling back stateside, home leave,
and other benefits. Id. at ¶¶ 47-48.
Because of these alleged differences in treatment, Beberman filed various lawsuits
alleging violations of several employment-related statutes.1 Of note here, on May 9, 2014,
See Beberman v. Sec’y, U.S. Dep’t of State, No. 21-1566, 2022 WL 683363, at *1 n.1 (3d Cir.
Mar. 8, 2022) (listing Beberman’s pending lawsuits).
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Beberman filed an action in the United States District Court for the District of the Virgin Islands
against the State Department. See Complaint, Beberman v. U.S. Dep’t of State, 1:14-cv-00020
(D.V.I. May 9, 2014), ECF No. 1. In that case, Beberman claimed the State Department violated
Title VII, the Age Discrimination in Employment Act (“ADEA”), and other statutes by its
disparate treatment of her and Elliott after denying both of them tenure. Id. The district court
dismissed the majority of her claims early in the case, and later granted summary judgment to the
State Department on her remaining claims. See generally ECF No. 68-1. The Third Circuit
affirmed the district court’s decisions, and specifically concluded that Elliott “was not similarly
situated to Beberman for purposes of the remain-at-post decision.” Beberman v. Sec’y, U.S.
Dep’t of State, No. 19-2745, 2022 WL 2037944 at *5 (3d Cir. June 7, 2022).
On February 6, 2017, Beberman filed this action alleging violations of the Equal Pay Act
(“EPA”). ECF No. 1. Initially, this Court2 dismissed Beberman’s claims for lack of subjectmatter jurisdiction under 28 U.S.C. § 1500 because of an earlier action she filed in the district
court. ECF No. 18. The Federal Circuit reversed the dismissal and remanded this case for
further proceedings. ECF No. 21. Upon remand, and because of the relationship of the claims
between this case and Beberman’s additional case in the district court, the Court stayed the case
pending the outcome of Beberman’s appeal in the Third Circuit. ECF No. 58. After the appeal
concluded, the Court lifted the stay. ECF No. 65. Once the stay was lifted, the Government
filed a Motion to Dismiss, ECF No. 68, asking the Court to dismiss Beberman’s case “because it
relies on a factual and legal issue that has already been litigated in [her] district court
litigation[.]” ECF No. 68 at 1.
I.

Legal Standard

“‘A motion to dismiss . . . for failure to state a claim upon which relief can be granted is
appropriate when the facts asserted by the plaintiff do not entitle him to a legal remedy.’” United
Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006) (quoting Boyle v. United
States, 200 F.3d 1369, 1372 (Fed. Cir. 2000)). As the Supreme Court has explained, “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 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). And to be “plausible on its face,” it “does not need
detailed factual allegations.” Twombly, 550 U.S. at 555; see also Cary v. United States, 552 F.3d
1373, 1376 (Fed. Cir. 2009) (Rule 8 “does not require the plaintiff to set out in detail the facts
upon which the claim is based, but enough facts to state a claim to relief that is plausible on its
face.”). In other words, the complaint must contain enough detail “to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “Conclusory allegations of
law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron
Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998) (citations omitted). Nevertheless, the Court “must
assume all well-pled factual allegations are true and indulge in all reasonable inferences in favor
of the nonmovant.” United Pac. Ins. Co., 464 F.3d at 1327-28 (quoting Anaheim Gardens v.
United States, 444 F.3d 1309, 1314-15 (Fed. Cir. 2006)).
A Rule 12(b)(6) dismissal may be appropriate based on an affirmative defense such as
issue preclusion. Larson v. United States, 89 Fed. Cl. 363, 382 (2009), aff’d, 376 F. App’x 26
2

This case was initially assigned to a different judge on this Court. See ECF No. 60.

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(Fed. Cir. 2010). “Affirmative defenses that have been considered under a Rule 12(b)(6) motion
to dismiss include, among others, ‘various types of estoppel’ and ‘the barring effect of
[preclusion].’” Corrigan v. United States, 82 Fed. Cl. 301, 304 (2008) (quoting 5B Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2008)).
II.

Discussion

Issue preclusion, or collateral estoppel, is appropriate where (1) the issue is identical to
one decided in the first action; (2) the issue was actually litigated; (3) resolution of the issue was
essential to a final judgment; and (4) plaintiff had a full and fair opportunity to litigate the issue
in the first action. In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994). The party asserting issue
preclusion bears the burden of establishing each required element. Jones v. United States, 846
F.3d 1343, 1361 (Fed. Cir. 2017); see also Silver State Land LLC v. United States, 148 Fed. Cl.
217, 263 (2020). The first logical question is whether the district court and Third Circuit’s
holdings that Elliot is not a valid comparator for Title VII and ADEA purposes present the
identical question as before the Court here—whether Elliot is a valid comparator for EPA
purposes.
It is undisputed that Beberman’s claim is not a run-of-the-mill EPA action. Under a
traditional EPA claim, a plaintiff must show that she and another employee of the opposite sex
were paid differently for doing work that requires “equal skill, effort, and responsibility, and
which [was] performed under similar working conditions[.]” 29 U.S.C. § 206(d). Put
differently, to establish a prima facie case under the EPA, “a plaintiff must show that (1) an
employer pays different wages to employees of the opposite sex, (2) for equal work requiring
equal skill, effort and responsibility, (3) performed under similar working conditions.” Cooke v.
United States, 85 Fed. Cl. 325, 341 (2008). In her Amended Complaint, Beberman attempts to
show that she and Elliott—her proposed comparator—were treated differently. ECF No. 47.
But the alleged difference in treatment is not in wages, per se; rather, it is in the decisions to
grant Elliott an extension of service but recall Beberman to Washington, D.C. immediately.3 The
specifics of this case thus bring the Court into uncharted waters.
The Government argues that although Beberman’s claim is unique, one narrow factual
dispute has been resolved by the prior litigation. Namely, the district court and Third Circuit
rejected Beberman’s use of Elliott as a comparator for her Title VII and ADEA claims. ECF No.
68 at 9.4 The district court and Third Circuit unequivocally held that under the appropriate tests
applicable to Title VII and ADEA claims, Elliott “was not similarly situated to Beberman for
purposes of the remain-at-post decision.” ECF No. 68-1 at 59. To reach that conclusion, those
courts relied on the Third Circuit’s test for evaluating comparators. See ECF No. 68-1 at 24
(citing Opsatnik v. Norfolk S. Corp., 335 F. App’x 220, 223 (3d Cir. 2009)). Therefore,
according to the Government, the issue of Elliott’s status as an appropriate comparator has been

The district court and Third Circuit referred to these as the “remain-at-post decisions.” ECF
No. 68-1 at 59.
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4

ADEA claims are examined under the same burden-shifting framework as used in Title VII
cases. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 120 (1985).

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decided such that issue preclusion bars Beberman’s re-litigation of that issue here. Of course, if
Beberman cannot rely on Elliott as a comparator, then her complaint falls apart.
But the standards for evaluating the sufficiency of a comparator under Title VII/ADEA
and those applicable to the EPA are different. See, e.g., Mulhall v. Advance Sec., Inc., 19 F.3d
586, 598 (11th Cir. 1994) (comparing the EPA and Title VII analysis and concluding the
“standard for ‘similarity’ in Title VII cases is relaxed”) (citation omitted); Alexander v. Marriott
Int’l, Inc., No. RWT 09-CV-2402, 2011 WL 1231029, at *6 (D. Md. Mar. 29, 2011) (“[T]he
level of ‘similarity between male and female-occupied jobs’ is more ‘relaxed’ under Title VII
than under the Equal Pay Act[.]”) (citation omitted); Clark v. Vivint Solar, Inc., No. 2:17-CV00144-JNP-JCB, 2020 WL 6873942, at *12 (D. Utah Nov. 23, 2020) (“[J]ob similarity
requirements under Title VII are less stringent than under the Equal Pay Act.”). Thus, the
question of whether Elliott is an appropriate comparator for Title VII/ADEA does not necessarily
resolve whether he is a proper comparator for the EPA. B & B Hardware, Inc. v. Hargis Indus.,
Inc., 575 U.S. 138, 154 (2015) (holding that different statutory schemes must have the same legal
standards before issue preclusion may apply). Indeed, other circuits have concluded that EPA’s
framework is distinct from that of Title VII and ADEA. See, e.g., Mickelson v. N.Y. Life Ins.
Co., 460 F.3d 1304, 1311 (10th Cir. 2006); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d
1518, 1529 (11th Cir. 1992). Here, the Government conceded at oral argument that the EPA
standards are not fully encompassed by the standards set out in Title VII/ADEA precedent. In
other words, if both the EPA standard and the Title VII/ADEA standard are put on a Ven
diagram, their circles may overlap, but the EPA standard is not fully enclosed within the Title
VII/ADEA standard. Therefore, the resolution of the comparator question for Title VII/ADEA
purposes does not necessarily resolve the question for EPA purposes.
In the end, “[p]recedent cautions that res judicata is not readily extended to claims that
were not before the [prior] court[.]” Kearns v. Gen. Motors Corp., 94 F.3d 1553, 1557 (Fed. Cir.
1996). That means precedent also “weighs heavily against denying litigants a day in court unless
there is a clear and persuasive basis for that denial.” Kearns v. Gen. Motors Corp., 94 F.3d
1553, 1557 (Fed. Cir. 1996) (emphasis added); see also United States v. Creek Nation, 476 F.2d
1290, 1299 (Ct. Cl. 1973) (“The doctrine of collateral estoppel must be used with its limitations
carefully in mind so as to avoid injustice.”). The Government has not carried its burden to show
that Beberman’s Title VII and ADEA litigation necessarily precludes, as a matter of law, her
assertion of Elliott as a valid comparator for purposes of her EPA claim.
For the avoidance of doubt, this Court is not expressing an opinion on whether Elliott is a
valid comparator under the EPA. Indeed, the Government makes some compelling arguments
that he is not. Instead, the Government moves the Court to dismiss this case for issue preclusion.
Given the novelty of the claim here and the different legal question raised in Beberman’s prior
litigation, however, the Court is simply unable to dismiss this action due to issue preclusion. As
a result, whether Elliott is a proper comparator for Beberman’s EPA claim is a question for
another day.
III.

Conclusion
For the foregoing reasons, the Court DENIES the Government’s Motion to Dismiss, ECF

No. 68.

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It is so ORDERED.
s/ Edward H. Meyers
Edward H. Meyers
Judge

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