Axelrod et al v. Board of Regents of the University of New Mexico
Filing
22
REPORT AND RECOMMENDATIONS by Magistrate Judge Gregory B. Wormuth re 4 MOTION to Dismiss Plaintiffs' Complaint for Damages for Violation of Fair Pay Laws filed by Board of Regents of the University of New Mexico. Objections to R&R d ue by 10/17/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MELISSA AXELROD and JULIE
SHIGEKUNI, on behalf of themselves
and other employees similarly situated,
Plaintiffs,
v.
Civ. No. 18‐427 KG/GBW
BOARD OF REGENTS OF THE
UNIVERSITY OF NEW MEXICO,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before me pursuant to the Court’s Order of Reference (doc.
20), referring Defendant’s Motion to Dismiss Plaintiffs’ Complaint for Damages for
Violation of Fair Pay Laws (doc. 4) and the attendant briefing (docs. 5, 14, 15) to me for
analysis, proposed findings, and recommended disposition. For the following reasons,
I RECOMMEND that the Court DENY the Motion to Dismiss as it pertains to Plaintiffs’
claims arising under the Fair Pay for Women Act (“FPWA”). Further, I RECOMMEND
that the Court DENY the Motion to Dismiss as it pertains to the EPA claims and instead
permit Plaintiffs leave to amend their Complaint to better articulate why their Equal
Pay Act (“EPA”) claims are not barred by the statute of limitations due to the federal
discovery rule.1
I.
BACKGROUND
Defendant removed this action from the Second Judicial District Court, County
of Bernalillo, State of New Mexico to this Court on May 4, 2018. Doc. 1. Plaintiffs filed
their First Amended Complaint—the operative Complaint in this action—in state court
below on April 17, 2018, alleging that Defendant violated the New Mexico Fair Pay for
Women Act2 (“FPWA”), the New Mexico Human Rights Act3 (“NMHRA”), and the
federal Equal Pay Act4 (“EPA”). Plaintiffs are women who are current or past
employees of the University of New Mexico (“UNM”) and hold positions as professors,
department chairs, and other upper‐level academic positions. Doc. 1‐3 at 1. Plaintiffs’
asserted factual basis for their claims is that they were paid less than male employees of
UNM performing similar work, under similar conditions, utilizing similar skills, effort,
and responsibility as Plaintiffs, and that these sex‐based pay disparities violate both
state and federal law, entitling Plaintiffs to compensatory and punitive damages. Id. at
3‐7. Plaintiffs received letters from the Equal Employment Opportunity Commission
(“EEOC”) dated June 27, 2017, informing them of the EEOC’s determination, following
The Motion to Dismiss was also directed against Plaintiffs’ claims under the New Mexico Human Rights
Act, but the parties have stipulated to the dismissal of those claims without prejudice after briefing was
completed on the present Motion. See doc. 19. Therefore, I do not address those claims herein.
2 N.M.S.A. §§ 28‐12‐1 et seq.
3 N.M.S.A. §§ 28‐1‐1 et seq.
4 29 U.S.C. § 206(d).
1
2
a “direct charge” investigation, that Defendant’s pay practices with regard to each
Plaintiff violated the EPA. Id. at 2, 4; see also doc. 5 at 1; doc. 5‐2; doc. 14 at 8‐9, 17‐25. In
these letters, the EEOC disclosed to each Plaintiff specific amounts of back wages and
interest that she was due based on pay disparities between 2007 and 2014, according to
the EEOC’s investigation. Doc. 14 at 23‐25. Plaintiffs assert that Defendant Board of
Regents of UNM is the governing body ultimately responsible for such discriminatory
and unlawful pay disparities. Id. at 1.
Following removal, on May 25, 2018, Defendant filed a Motion to Dismiss and a
Memorandum in Support (docs. 4, 5), which are now before me pursuant to the Court’s
Order of Reference. Doc. 20.
II.
PARTIES’ POSITIONS
Defendant argues that Plaintiffs’ FPWA claims are barred because Defendant is a
state entity and the FPWA contains no waiver of state immunity. See doc. 5 at 4‐7.
Plaintiffs argue that the FPWA does apply to state employers such as Defendant,
because the FPWA is part of the same statutory scheme as the NMHRA, which
explicitly allows employment discrimination claims to be brought against state
employers. Doc. 14 at 4‐7. Both parties acknowledged that whether the FPWA applies
to state employers was a question then pending before the New Mexico Court of
Appeals in the consolidated cases of Tafoya Lucero v. N.M. Corrs. Dep’t, Ct. App. 35,438,
Dist. Ct. No. D‐101‐CV‐2013‐03206 (Briefing Complete as of 10‐7‐16), and Wolinsky v.
3
N.M. Corrs. Dep’t, Ct. App. No. 35,762, Dist. Ct. No. D‐101‐CV‐2016‐01005 (Briefing
Complete as of 3‐29‐17). In those cases, state district court judges reached opposing
conclusions on the issue. See doc. 5 at 4 n.1; doc. 14 at 5; see also Gonzales v. Cty. of Taos &
Taos Cty. Bd. of Comm’rs, Order Granting in Part and Denying in Part Defendants’
Motion for Summary Judgment, doc. 58 at 32‐33 in 17‐cv‐0582 NF/KHR (D.N.M. Aug. 1,
2018).
Due to the fact that this matter of first impression under New Mexico law was, at
the time of Plaintiffs’ Response, pending before a state court, Plaintiffs presented
several alternative options to the Court: (1) decide the state law question based on the
parties’ briefing; (2) certify the question to the New Mexico Supreme Court pursuant to
N.M.R.A. 12‐607(A)(1); or (3) reserve ruling on the question, pending the outcome of the
Wolinsky/Lucero cases. Doc. 14 at 5‐6. Defendant urged this Court to decide the issue
directly and presented its legal arguments that the FPWA claims do not apply to state
employers and should thus be dismissed. Doc. 5 at 4‐7; doc. 15 at 2‐5.
Regarding the EPA claims, Defendant contends that Plaintiffs’ EPA claims are
untimely, because Plaintiffs failed to bring these claims within the applicable statute of
limitations period. Id. at 13‐15. In response, Plaintiffs argue that, because they were
unaware of the disparate pay forming the basis of their claims until they received the
June 2017 EEOC letters, these claims are timely filed based upon the federal “discovery
rule,” which delays the accrual of a claim until a plaintiff knew or should have known
4
the facts necessary to establish her cause of action. Doc. 14 at 9‐11; see also Varnell v. Dora
Consol. Sch. Dist., 756 F.3d 1208, 1216 (10th Cir. 2014) (describing the federal discovery
rule). Further, Plaintiffs argue that the “continuing violation” doctrine also applies and
makes their claims timely. Doc. 14 at 12‐13. Under the continuing violation doctrine, “a
plaintiff may recover for discriminatory acts that occurred prior to the statutory
limitations period if they are ‘part of a continuing policy or practice that includes the act
or acts within the statutory period.’” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1183
(10th Cir. 2003) (quoting Mascheroni v. Bd. of Regents of the Univ. of Cal., 28 F.3d 1554,
1561 (10th Cir. 1994)). Accordingly, Plaintiffs request that the Court deny Defendant’s
motion to dismiss the EPA claims outright, or, in the alternative, that the Court grant
Plaintiffs leave to amend their First Amended Complaint in order “to more artfully
plead the elements of delayed discovery under the Discovery Rule and/or a continuing
violation of the EPA, under the Ledbetter Fair Pay Act[.]” Doc. 14 at 15. In its Reply,
Defendant contends that neither the continuing violation doctrine nor the discovery
doctrine is applicable to toll the statutory limitations period governing Plaintiffs’ EPA
claims, making leave to amend futile.
III.
ANALYSIS
A. The Court should deny the motion to dismiss as it applies to Plaintiffs’
FPWA claims.
At the time of briefing, the question of whether FPWA claims can be brought
5
against state entities was a matter of first impression in New Mexico and remained
pending before the New Mexico Court of Appeals. See Gonzales, Order Granting in Part
and Denying in Part Defendants’ Motion for Summary Judgment, doc. 58 at 32‐33 in 17‐
cv‐0582 NF/KHR (D.N.M. Aug. 1, 2018) (discussing the pending New Mexico Court of
Appeals consolidated cases and reserving ruling on the same issue in part because “the
reach of the FPWA appears to be an issue of significant state importance, including
issues of state sovereignty.”). On August 30, 2018, the New Mexico Court of Appeals
filed its opinion in the consolidated Wolinsky/Lucero cases.5 Wolinsky v. New Mexico
Corrections Dep’t, No. A‐1‐CA‐35762 (N.M. Ct. App. August 30, 2018). The Wolinsky
court held that the state has no sovereign immunity from liability under the FPWA, and
the legislature intended the state to be subject to FPWA claims. Id.
The existence of sovereign immunity under the FPWA (and thus the viability of
Plaintiffs’ FPWA claim) is a question to be resolved by reference to state law. “‘A
federal court sitting in diversity applies the substantive law, including choice of law
rules, of the forum state.’ This rule also applies when a federal court exercises
supplemental jurisdiction over state law claims in a federal question lawsuit.”
BancOklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999)
(quoting Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir. 1994) (internal citations omitted)).
5
As Defendant correctly notes in its Notice of Supplemental Authority, the opinion in Wolinsky is “as yet
unpublished.” Doc. 21. However, the opinion is designated for future filing and will not remain
unpublished.
6
In ruling directly on Defendant’s motion to dismiss the FPWA claims, the Court must
predict the decision of the state’s highest court. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407
(10th Cir. 1988) (“If the state’s highest court has not addressed the issue presented, the
federal court must determine what decision that state court would make if faced with
the same facts and issue.”). The Court does so by considering “state court decisions,
decisions of other states, federal decisions, and the general weight and trend of
authority.” Id. Where the state’s highest court has not issued a controlling decision, “a
decision by an intermediate court should be followed by the Federal court, absent
convincing evidence that the highest court would decide otherwise.” Black & Veatch
Corp. v. Aspen Ins. (UK) Ltd., 882 F.3d 952, 967 (10th Cir. 2018). 6 In the case before the
Court, there has been a clear decision by the New Mexico Court of Appeals. While the
defendant in Wolinsky has noticed an appeal to the New Mexico Supreme Court,
Defendant in the instant case has presented no evidence or argument that the New
Mexico Supreme Court would decide differently. Consequently, for the purposes of the
motion to dismiss, it is proper for the Court to adopt the New Mexico Court of Appeals’
interpretation of state law as articulated in Wolinsky.7
Whether federal courts must defer to intermediate state court decisions in making these Erie predictions,
or must merely consider them as one of many factors, is a question currently pending before the Supreme
Court. Black & Veatch, 882 F.3d, cert. granted, sub nom. Aspen Insurance (UK) Ltd., et al. vs. Black & Veatch
Corporation, No. 17‐1662 (U.S. Jun 13, 2018). Until the Supreme Court renders its decision or the Tenth
Circuit alters its position, this Court remains bound by the approach laid out in Greystone, 661 F.3d at
1282.
7
This conclusion renders moot the alternative options proposed by Plaintiffs—a stay or a certification to
6
7
Turning to Defendant’s dismissal argument, Defendant contends that Plaintiffs
have failed to state a claim under the FPWA because FPWA claims against the state are
barred by sovereign immunity. Doc. 5 at 4. The Court may dismiss a complaint for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Fed. R. Civ. P.
12(b)(6). In ruling on 12(b)(6) motion, the Court must accept as true all well‐pleaded
factual allegations in the complaint and must view them in the light most favorable to
the nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 1999). The Court should not grant a 12(b)(6) motion “unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Id. (quoting GFF Corp. v. Associated Wholesale Grocers, Inc.,
130 F.3d 1381, 1384 (10th Cir. 1997) (internal citations omitted)).
Defendant’s only argument for dismissal of Plaintiffs’ FPWA claim is that the
FPWA is not applicable to the state and contains no waiver of sovereign immunity. See
docs. 4, 5, 15. Given the New Mexico Court of Appeals’ decision that the state is subject
to claims brought under the FPWA, Wolinsky, No. A‐1‐CA‐35762, it is not clear beyond a
doubt that Plaintiffs will not be able to prove their claim. At this juncture, I therefore
recommend that Defendant’s motion to dismiss Plaintiffs’ FPWA claim be denied.
the New Mexico Supreme Court. See doc. 14 at 6.
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B. The applicability of limitation doctrines on Plaintiffs’ Equal Pay Act
claims.
Plaintiffs’ claims relate to allegedly discriminatory pay they received between
2007 through 2014.8 Under 29 U.S.C. § 255(a), however, a claim under the Equal Pay
Act must be commenced within two years of its accrual, or three years if the violation is
willful. Even assuming a finding of willfulness of which there is no allegation in the
First Amended Complaint, such a lawsuit would ordinarily have to be brought by
December 2017. Plaintiffs’ claims were filed in state court in early 2018.9 Therefore,
barring a delay in accrual date or some doctrine of tolling, Plaintiffs’ claims are
untimely. In the briefing on the present Motion, Plaintiffs have presented two doctrines
that they contend should apply to defeat Defendant’s affirmative statutory limitations
defense. Specifically, Plaintiffs argue that both the “continuing violation” doctrine and
the “discovery rule” apply to their EPA claims and make them timely. While I do not
agree that the “continuing violation” doctrine applies, I recommend that the Court
permit Plaintiffs leave to amend to present facts to support a later accrual date based
upon the “discovery rule.”
To be sure, Plaintiffs’ First Amended Complaint does not explicitly refer to any particular time period.
See doc. 1, Ex. A‐2. It does, however, indicate that the discriminatory wages of which they complain are
those identified in the letter of determination they received from the Equal Employment Opportunity
Commission. See id., ¶7, ¶10. That letter relates to wage discrimination covering 2007 through 2014. See
doc. 5, Ex. B. Moreover, in their Response, Plaintiffs do not dispute that their First Amended Complaint is
based upon discriminatory pay from 2007 through 2014. See doc. 14 at 8‐13.
9
Plaintiffs’ original Complaint was filed on February 27, 2018 and their First Amended Complaint was
filed on April 17, 2018. See doc. 1, Exs. A‐1, A‐2. Neither party has briefed the issue of which should
control for the purposes of the statute of limitation.
8
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1. The “Continuing Violation” Doctrine
“[U]nder proper circumstances, a plaintiff may recover for discriminatory acts
that occurred prior to the statutory limitations period if they are ‘part of a continuing
policy or practice that includes the act or acts within the statutory period.’” Davidson v.
Am. Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003) (quoting Mascheroni v. Board of
Regents of the Univ. of Cal., 28 F.3d 1554, 1561 (10th Cir.1994)). To establish such a
“continuing violation,” a plaintiff must establish “either that (1) a series of related acts
was taken against him, with one or more of those acts occurring within the limitations
period, or (2) the defendant maintained a company‐wide policy of discrimination both
before and during the limitations period.” Id. at 1183‐84 (citing Bennett v. Quark, Inc.,
258 F.3d 1220, 1227 (10th Cir. 2001)). Originally under Tenth Circuit precedent, the
analysis of whether alleged discriminatory acts are sufficiently related to constitute a
continuing violation or whether such acts are discrete acts which must be regarded as
individual violations utilized a three‐part inquiry: “(i) subject matter—whether the
violations constitute the same type of discrimination; (ii) frequency; and (iii)
permanence—whether the nature of the violations should trigger an employeeʹs
awareness of the need to assert her rights and whether the consequences of the act
would continue even in the absence of a continuing intent to discriminate.” Mascheroni,
28 F.3d at 1561 (quotation omitted). However, as recognized by the Davidson court, the
Supreme Court implicitly overturned this approach in National R.R. Passenger Corp. v.
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Morgan, 536 U.S. 101 (2002). See Davidson, 337 F.3d at 1184‐86. After Morgan, “plaintiffs
are now expressly precluded from establishing a continuing violation exception for
alleged discrete acts of discrimination occurring prior to the limitations period, even if
sufficiently related to those acts occurring within the limitations period.” Id. at 1185.
Therefore, the key question is whether, in the context of discriminatory pay
claims, each discriminatory paycheck is a discrete act of discrimination. One must
again look to Morgan where the Supreme Court defined “discrete acts” in this context.
“Discrete acts, such as termination, failure to promote, denial of transfer, or refusal to
hire are easy to identify.” Morgan, 536 U.S. at 114. Moreover, an important quality of
“discrete acts” are that they “constitute[] a separate actionable ‘unlawful employment
practice.’” Id. “Discrete acts” were distinguished from hostile work environment
claims where the “very nature [of the claim] involves repeated conduct [and] therefore
cannot be said to occur on any particular day. It occurs over a series of days or perhaps
years and, in direct contrast to discrete acts, a single act of harassment may not be
actionable on its own.” Id. at 115. Judged against this rubric, discriminatory pay is a
discrete act. See O’Donnell v. Vencor, Inc., 466 F.3d 1104, 1113 (9th Cir. 2006) (“Each
discriminatory paycheck [plaintiff] received constitutes a separate violation of the EPA
… [t]herefore … the continuing violation doctrine does not [apply.]”); CSC Holdings, Inc.
v. Redisi, 309 F.3d 988, 992 (7th Cir. 2002) (Court has “noted the contrast between a
continuing wrong, such as deliberate indifference to a prisoner’s medical treatment, and
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discrete acts, such as consistently underpaying an employee because of her sex.”); Pollis
v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997) (A “claim of discriminatory
pay is fundamentally unlike other claims of ongoing discriminatory treatment because
it involves a series of discrete, individual wrongs rather than a single and indivisible
course of wrongful action.”); Bazemore v. Friday, 478 U.S. 385, 395‐96 (“Each weekʹs
paycheck that delivers less to a [disadvantaged class member] than to a similarly
situated [favored class member] is a wrong actionable under Title VII….”); see also
Goodwin v. General Motors Corp., 275 F.3d 1005, 1010 (10th Cir. 2002) (although applying
pre‐Morgan law regarding application of continuing violation doctrine, the court agreed
that a “claim of discriminatory pay is fundamentally unlike other claims of ongoing
discriminatory treatment because it involves a series of discrete, individual
wrongs….”). While it typically occurs repeatedly in paycheck after paycheck, a
plaintiff need not prove such repeated conduct to prevail. Instead, each discriminatory
paycheck “constitutes a separate actionable ‘unlawful employment practice.’” Morgan,
536 U.S. at 114.
Therefore, even if the “continuing violation” doctrine applies to claims under the
Equal Pay Act, it is unavailable to alter the applicable statute of limitations because each
discriminatory paycheck is a discrete act of discrimination under Morgan. See
O’Donnell, 466 F.3d at 1113; Pollis, 132 F.3d at 119; Krough v. Cessford Construction Co.,
231 F. Supp. 2d 914, 921 (S.D. Iowa 2002). Moreover, while neither side presented this
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argument, it appears that the “continuing violation” doctrine does not apply to Equal
Pay Act claims at all. As the Tenth Circuit has explained,
This continuing violation theory is a creation of federal law that arose in
Title VII cases. This theory recognizes that certain violations are
continuing in nature and provides that a claim asserting such a violation is
timely if administrative charges are filed within the period applicable to
the last act in the continuing series. Although this theory thus allows a
plaintiffʹs claims to encompass acts that would otherwise be time‐barred
by the relatively short limit for filing administrative charges, a plaintiff
can only receive back pay for the two years prior to the filing of
administrative charges. … [W]e agree with the [Fourth Circuit] that
because the continuing violation theory is a creature of the need to file
administrative charges, and because a section 1981 claim does not require
filing such charges before a judicial action may be brought, the continuing
violation theory is simply not applicable.
Thomas v. Denny’s, Inc., 111 F.3d 1506, 1513‐14 (10th Cir. 1997). Because, like section
1981 claims, Equal Pay Act claims do not require the filing of administrative charges,
the continuing violation doctrine is inapplicable to Plaintiffs’ claim under that act. In
any event, it is clear that the untimeliness of Plaintiffs’ Equal Pay Act claims cannot be
salvaged by the “continuing violation” doctrine.
2. Delayed Accrual Based on the “Discovery Rule”
Federal law governing accrual of causes of action “conform[s] in general to
common‐law tort principles.” Wallace v. Kato, 549 U.S. 384, 388 (2007). “And ‘[u]nder
those principles, it is the standard rule that accrual occurs when the plaintiff has a
complete and present cause of action, that is when the plaintiff can file suit and obtain
relief.’” Varnell v. Dora Consol. School Dist., 756 F.3d 1208, 1215 (2014) (quoting Wallace,
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549 U.S. at 388). The federal discovery rule “delays accrual of a claim until the plaintiff
knew or should have known the facts necessary to establish her cause of action[.]”
Varnell, 756 F.3d at 1216. This rule is generally read into statutes of limitation in federal
question cases in the absence of a contrary directive from Congress. See Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990). The Supreme Court has declined to
answer whether the discovery rule applies to employment discrimination claims such
as those brought under Title VII or the EPA. See National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 114 n. 7 (2002). Nonetheless, the Tenth Circuit has generally
assumed its application to that context. See, e.g., Davidson, 337 F.3d at 1186‐87; contra
Hamilton v. 1st Source Bank, 928 F.2d 86 (4th Cir. 1990) (en banc) (discovery rule does not
apply to Age Discrimination in Employment Act claims).
Assuming that the discovery rule would delay accrual past the date of a person’s
mere receipt of the discriminatory paycheck, what is the knowledge which marks the
accrual of a claim of discriminatory pay? Some courts have ruled that “[t]he important
question for accrual purposes, then, is when did Plaintiffs know, or when should they
have known through the exercise of reasonable diligence, that they were underpaid
because they are women.” Schengrund v. Penn. State Univ., 705 F. Supp. 2d 425, 434
(M.D. Pa. 2009); see also Funayama v. Nichia Am. Corp., No. CIV.A. 12‐5406, 2014 WL
1013484, at *7 (E.D. Pa. Mar. 14, 2014), aff’d, 582 F. App’x 100 (3d Cir. 2014). However,
this approach would seem contrary to the holding of Hulsey v. Kmart, Inc., 43 F.3d 555,
14
558‐59 (10th Cir. 1994), which established that “notice or knowledge of discriminatory
motivation is not a prerequisite for a cause of action to accrue . . .[o]n the contrary, it is
knowledge of the adverse employment decision itself that triggers the running of the
statute of limitations.” In other words, an employment discrimination claim can accrue
even if the employee does not know that illegal discrimination motivated the
employer’s decision. In discriminatory pay cases, perhaps the discovery rule, if
applicable, would delay accrual only until the employee knew or should have known of
a relevant pay disparity notwithstanding ignorance about its cause. See, e.g., Adams v.
CBS Broadcasting, Inc., 61 Fed. App’x 285, 288 (7th Cir. 2003); Clark v. Sears Roebuck & Co.,
816 F. Supp. 1064, 1069 (E.D. Pa. 1993); see also Goodwin, 275 F.3d at 1008‐11 (in context
of “continuing violation” analysis, the court repeatedly noted plaintiff’s lack of notice of
any pay disparity).
The undersigned need not reach a conclusion on this question because, as it
currently stands, the First Amended Complaint makes no factual assertions which
could support any delayed accrual based upon the discovery rule. While the First
Amended Complaint asserts that Plaintiffs received a letter from the EEOC on June 27,
2017, it makes no assertion that they were unaware of discriminatory pay prior to that
date. An unclear assertion on that point appears in counsel’s response, but such is not
relevant to a Rule 12(b)(6) analysis focused only on the pleadings. See doc. 14 at 9
(“Only upon receipt of notice, their becoming aware of the basis of an EPA claim, and
15
the applicable time limitations, did the clock start to run on these claims….”).
Moreover, this “assertion” completely fails to address the issue about whether Plaintiffs
should have known of the pay disparity which lasted seven years. In their Response,
Plaintiffs request that, if the Court finds the Complaint insufficient to preserve the
“discovery rule” argument, it “grant them leave to amend to plead the requisite facts
alleging recent discovery ….” Doc. 14 at 10. However, Plaintiffs have not filed a motion
to amend or provided a proposed Second Amended Complaint. Given the possible
relevance of the discovery rule to the limitations issue before the Court, I hereby order
Plaintiffs to file a Motion for Leave to Amend with a proposed Second Amended
Complaint within ten days. The amended complaint should include all allegations
relevant to the discovery rule as described above. Should Plaintiffs file such a motion, I
recommend the Court grant the Motion for Leave to Amend and deny Defendant’s
Motion to Dismiss with respect to Plaintiff’s EPA claims without prejudice. Defendant
would then be free to file a renewed motion to dismiss focused on the “discovery rule”
argument as applied to the putative Second Amended Complaint.
IV.
CONCLUSION
For the foregoing reasons, I hereby recommend that the Court DENY
Defendant’s Motion to Dismiss as it pertains to claims arising under the FPWA. I
further recommend that, should Plaintiffs file a Motion for Leave to Amend with a
proposed Second Amended Complaint which presents their allegations related to
16
accrual pursuant to the “discovery rule,” the Court grant such motion and DENY
Defendant’s Motion to Dismiss with respect to Plaintiffs’ EPA claims without prejudice.
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court within
the fourteen‐day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.
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