DAY-LEWIS v. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Filing
76
MEMORANDUM. SIGNED BY HONORABLE L. FELIPE RESTREPO ON 9/16/2014. 9/17/2014 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KIMBERLY DAY-LEWIS
v.
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, et al.
:
:
:
:
:
:
CIVIL ACTION
NO. 12-2638
MEMORANDUM
RESTREPO , J.
SEPTEMBER 16, 2014
Plaintiff, Kimberly Day-Lewis, brings this civil action against defendant, Jacqueline A.
Berrien, Chair of the U.S. Equal Employment Opportunity Commission (“EEOC”),1 alleging
discriminatory conduct on the bases of plaintiff”s race, age, and gender, as well as retaliation
against her for engaging in protected activity. Specifically, plaintiff’s Complaint alleges: (1)
racial discrimination pursuant to Title VII of the Civil Rights Acts (“Title VII”) (Count I), 42
U.S.C. § 2000e-2; (2) gender discrimination pursuant to Title VII (Count II); (3) an unequal pay
claim pursuant to the Equal Pay Act, 29 U.S.C. § 206 (Count III); (4) age discrimination
(disparate treatment) pursuant to the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621(Count IV); and (5) retaliation pursuant to Title VII (Count VI).2
1
Although plaintiff’s Complaint identifies the EEOC as the defendant, upon stipulation of
the parties, Jacqueline A. Berrien has been substituted as the defendant in this case. See Pl.’s
Mot. to Substitute Real Party in Interest (ECF Document 16) ¶ 3 (confirming stipulation of
counsel); Order filed 9/20/12 (naming Jacqueline A. Berrien as defendant) (Doc. 17).
2
Count V of the Complaint alleges a claim for age discrimination (disparate impact) under
the ADEA, see Pl.’s Compl. ¶¶ 213-17, but at oral argument plaintiff’s counsel agreed to the
dismissal of Count V in its entirety, see Tr. Oral Arg. 1/30/14 (hereinafter cited as “Oral Arg.”),
1
Before the Court are Plaintiff’s Motion for Partial Summary Judgment (Doc. 37),
defendant’s opposition thereto (Doc. 45), Defendant’s Motion for Summary Judgment (Doc. 39),
plaintiff’s opposition thereto (Doc. 46), and the parties respective reply briefs (Docs. 57, 58).3
Plaintiff’s motion requests partial summary judgment in her favor on her claims of race, age, and
gender discrimination and on her wage discrimination claim under the Equal Pay Act. See Pl.’s
Br. Supp. Pl.’s Summ. J. Mot. (herein cited as “Pl.’s Br.”) 20. Defendant’s motion requests
summary judgment on the bases that the Court lacks jurisdiction over: (1) plaintiff’s pay-based
claims brought under Title VII, the ADEA, and the Equal Pay Act in that plaintiff irrevocably
elected to raise and resolve those claims through a grievance procedure; (2) plaintiff’s Equal Pay
Act Claims because 28 U.S.C. § 1346(a)(2) bars the Court from exercising jurisdiction over such
claims seeking in excess of $10,000; and (3) plaintiff’s claims related to the rescission of her
4/10 work schedule4 and the lowering of her 2010 performance evaluations in that plaintiff
similarly elected to pursue those matters through a negotiated grievance process.5 Defendant
further contends that plaintiff failed to timely exhaust administrative remedies for her nonselection and schedule-related claims, and in any event, that there is no genuinely triable dispute
at 82 (agreeing that “Count 5 is out all together,” plaintiff’s counsel confirmed that “we will
agree to dismiss Count 5”).
3
Although this case was originally assigned to the Hon. Eduardo C. Robreno, it was
subsequently reassigned to my calendar.
4
A 4/10 schedule is a schedule which allows for an employee to work four 10-hour days
in a pay week and has the fifth day off. See Pl.’s Dep. 69, 70 (JA 274); Dep. of Reuben Daniels,
Jr. at 149 (JA 152); Collective Bargaining Agree. (“CBA”) § 30.04(d)(2) (JA 718).
5
In support of their respective motions and opposition thereto, the parties have submitted
a Joint Appendix composed of the parties’ supporting exhibits (herein cited as “JA”).
2
on plaintiff’s claims of discrimination and retaliation. For the reasons that follow, defendant’s
motion is granted in part and denied in part, and plaintiff’s motion is denied.
1. LEGAL STANDARD
Defendant’s claims alleging lack of subject-matter jurisdiction are raised under Rule
12(b)(1) of the Federal Rules of Civil Procedure. See Def.’s Br. Supp. Def.’s Mot. (herein cited
as “Def.’s Br.”) 1-2, 3-6; see also Fed. R. Civ. P. 12(b)(1). A 12(b)(1) motion may present a
facial attack or a factual attack on the claim at issue. Constitution Party of Pa. v. Aichele, 757
F.3d 347, 357 (3d Cir. 2014) (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d
Cir. 2012)). A facial attack is an argument that considers a claim on its face and asserts that it is
insufficient to invoke the subject matter jurisdiction of the court because, “for example, it does
not present a question of federal law, or because there is no indication of a diversity of
citizenship among the parties, or because some other jurisdictional defect is present.” Id. In
reviewing a facial attack, the Court must “consider the allegations of the Complaint and
documents referenced therein and attached thereto, in the light most favorable to the plaintiff.”
Id. (citing In re Schering Plough Corp., 678 F.3d at 243) (internal quotation marks omitted).
“A factual attack, on the other hand, is an argument that there is no subject matter
jurisdiction because the facts of the case – and here the District Court may look beyond the
pleadings to ascertain the facts – do not support the asserted jurisdiction.” Id. “A factual attack
requires a factual dispute.” Id. “In sum, a facial attack ‘contests the sufficiency of the
pleadings,’ In re Schering Plough Corp., 678 F.3d at 243, ‘whereas a factual attack concerns the
actual failure of a [plaintiff’s] claims to comport [actually] with the jurisdictional prerequisites.”
3
Constitution Party of Pa., 757 F.3d at 357 (quoting CNA v. United States, 535 F.3d 132, 139 (3d
Cir. 2008) (internal quotation marks omitted)).
The remaining claims raised by defendant’s and plaintiff’s respective motions request
summary judgment under Rule 56. A party moving for summary judgment bears the initial
burden of demonstrating that there are no genuine issues of material fact and that judgment is
appropriate as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once a properly supported motion for summary judgment has been made, the burden
shifts to the non-moving party, who must set forth specific facts showing that there is a genuine
issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). An
issue is “genuine” if a reasonable jury could rule in favor of the non-moving party based on the
evidence presented. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). On a motion
for summary judgment, the court considers the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 256.
2. SUBJECT-MATTER JURISDICTION
A. Plaintiff’s Pay-Based Claims
Defendant argues that the Court lacks jurisdiction over plaintiff’s Equal Pay Act, Title
VII, and ADEA “pay claims,” i.e. plaintiff’s claims based on her being paid at the grade GS-12,
step 1 level instead of being promoted or upgraded to a higher pay level. See Def.’s Br. 4.
“Under the Civil Service Reform Act of 1978 (‘CSRA’), 5 U.S.C. §§ 7101 et seq., a federal
employee who believes he or she has been discriminated against and whose CBA provides for a
negotiated grievance procedure addressing discrimination claims, can elect to file either a
4
grievance under the CBA or an EEO complaint, but not both.” Ilgenfritz v. Hon. Robert Gates,
Sec’y of Dept. of Defense, 2010 WL 2978090, *6 (W.D. Pa. 2010) (citing 5 U.S.C. § 7121(d); 29
C.F.R. § 1614.301(a)) (emph. in original). Similarly, the relevant CBA between the union and
the EEOC, which provides “negotiated grievance procedures,” provides that:
An aggrieved employee affected by discrimination or any other
prohibited personnel practice under 5 U.S.C. § 2302(b)(1) of the
[CSRA] may at his/her option raise the matter under a statutory
procedure or the negotiated grievance procedure, but not both. The
filing of a negotiated grievance under this Article [41.00] prior to
invoking any applicable statutory procedure constitutes an election of
the negotiated grievance procedure over any statutory procedure.
This election occurs with the filing of a written grievance at Step 1.
(JA 727 (emph. added).)6 “If an employee files a timely written grievance before filing a written
EEO complaint, he (or she) has irrevocably chosen the negotiated grievance procedure, and is
precluded from filing an EEO complaint on the same matter.” Ilgenfritz, 2010 WL 2978090, at
*6 (citing Rosell v. Wood, 357 F. Supp.2d 123, 128 (D. D.C. 2004)) (parenthetical added); Am.
Fed’n of Gov’t Employees, Local 2052 v. Reno, 992 F.2d 331, 332 (D.C. Cir. 1993).
Accordingly, “[a]ny such complaint filed after a grievance has been filed on the same matter
shall be dismissed.” 29 C.F.R. § 1614.301(a). Defendant points out that plaintiff was such a
federal employee, and she irrevocably elected to raise and settle her pay-based claims through a
negotiated grievance procedure (JA 1088-89 (Mar. 8, 2010 Step-1 Grievance), 1140-41 (May 3,
2010 Step-2 Grievance), 1178-82 (May 21, 2010 EEO Complaint)). See Def.’s Br. 4.
6
Under the CBA, if a grievance is not satisfactorily resolved at Step 1, the employee or
union representative may file a written Step 2 grievance “with the District or Headquarters Office
Director.” (JA 729.) Any issues not raised in the grievance by Step 2 are waived. (Id.) If the
Step 2 grievance is not satisfactorily resolved, the employee or union representative may file a
Step 3 grievance with the EEOC Chair or her designee. (Id.)
5
In response, plaintiff acknowledges that “the Union filed a class grievance, with
[plaintiff] serving as the class representative, to incite the EEOC to take administrative action . . .
to implement the promotions and pay raises . . .” See Pl.’s Resp. to Def.’s Mot. (herein cited as
“Pl.’s Resp. Br.”) 18. Indeed, in settlement of this class grievance, plaintiff received her
promotion to the GS-13 pay grade level, the grant of her hardship transfer request to the Raleigh
Area Office, and three days of administrative leave to move (JA 1167). See Pl.’s Resp. Br. 18
n.26. However, plaintiff contends that her “individual pay-based discrimination claims based on
Title VII, ADEA, and the [Equal Pay Act] do not constitute the ‘same matter’ as the narrowly
tailored matter asserted in the class grievances.”7 See Pl.’s Resp. Br. 17. According to plaintiff,
“[i]n order to determine if [plaintiff] has asserted the ‘same matter’ of that contained in her class
grievance, [plaintiff] must have included the same, identical topics in both her class grievance
and her discrimination complaint.” Id. at 18. Plaintiff argues that “[t]he narrowly tailored issue
grieved in the Union’s class grievance does not constitute the same matter as [plaintiff’s] paybased discrimination claims because the issues disputed are not identical.” Id. (emph. added).
“Too narrow a definition of ‘matter’ would frustrate the election provisions of § 7121(d).
This in turn would undermine the CSRA’s reliance on [CBAs], since clever drafting could then
allow an employee to proceed both in a grievance and in an EEO complaint.” Facha v. Cisneros,
914 F. Supp. 1142, 1148-49 (E.D. Pa. 1996), aff’d, 106 F.3d 384 (3d Cir. 1996). “‘Matter under
§ 7121(d) has a very broad scope referring to the underlying employment actions at issue in the
dispute.” Gill v. Summers, 2001 WL 283150, *3 (E.D. Pa. 2001) (emph. added). Thus, “[t]he
7
Plaintiff does not specifically dispute that assuming arguendo that her grievance did
raise the same matter as that raised in this civil action, the Court does not have jurisdiction of
those issues.
6
term ‘matter’ in 5 U.S.C. § 7121(d) and 29 C.F.R. § 1614.301(a) has been interpreted to refer to
the ‘underlying [government] action’ that gives rise to the grievance or complaint.” Ilgenfritz,
2010 WL 2978090, at *7 (quoting Rosell v. Wood, 357 F. Supp.2d 123, 128 (D. D.C. 2004))
(citations omitted); see Bonner v. Merit Sys. Protection Bd., 781 F.2d 202, 204 (Fed. Cir. 1986).
“Two complaints refer to the same ‘matter’ if the disputed personnel action at the root of the
employee’s complaint is the same, regardless of the legal theory on which the action is
challenged.” Ilgenfritz, 2010 WL 2978090, at *7 (quoting Van Houten v. Gober, 1998 WL
966021, *5 (E.D. Pa. 1998)) (emph. added); see 29 C.F.R. § 1614.301(a) (employee who filed a
grievance “may not thereafter file a complaint on the same matter . . . irrespective . . . of
whether the grievance has raised an issue of discrimination”) (emph. added). Thus, to the
extent that plaintiff contends that the grievance and Complaint “must have included the same,
identical topics” to be considered the “same matter,” see Pl.’s Resp. Br. 18 (emph. added),
including the legal theory presented, such as claims of discrimination, plaintiff is incorrect. See
Ilgenfritz, 2010 WL 2978090, at *7 (quoting Van Houten, 1998 WL 966021, at *5); see 29
C.F.R. § 1614.301(a). Further, plaintiff’s procedural or strategic choice to pursue her pay-based
claims as part of a class, instead of individually, through the grievance procedure is immaterial.
See, e.g., Macy v. Dalton, 853 F. Supp. 350, 355 (E.D. Cal. 1994) (observing that the choice of
whether to pursue a claim individually or as part of a class “is nothing more than a procedural or
strategic choice”).
Although plaintiff argues that her grievance involved what she characterized as “career
ladder promotions,” her March 8, 2010 grievance explicitly complained that “[plaintiff], and
others similarly situated, have not received pay commensurate with the work that they [were]
7
perform[ing]” (JA 1088). The disputed personnel action in plaintiff’s grievance was thus
defendant’s failure to pay her (as well as others similarly situated) “commensurate[ly] with the
work” she was performing (id.). Plaintiff’s Complaint in this civil action also challenges the
“pay discrepancy between [plaintiff] and the other ADR Mediators” despite “perform[ing] the
same or substantially the same duties as the other ADR Mediators.” See, e.g., Pl.’s Compl. ¶
184(g); see also id. ¶ 198 (alleging “[plaintiff] was classified at a lower grade and was paid a
substantially lower wage rate for substantially equal work to that performed” by others).
Accordingly, to the extent that plaintiff’s Complaint in this civil action challenges defendant’s
failure to pay her a higher amount commensurately with the work that she was performing (“paybased claims”), plaintiff’s claims are dismissed.8 See Ilgenfritz, 2010 WL 2978090, at *9
(granting defendant’s motion to dismiss for lack of jurisdiction where plaintiff’s grievance and
Complaint concerned the same matter).
B. Plaintiff’s Equal Pay Act claims
Defendant argues that the Court lacks subject-matter jurisdiction over plaintiff’s Equal
Pay Act claims in that plaintiff’s Complaint seeks in excess of $10,000 on these claims, and the
relevant statute, 28 U.S.C. § 1346(a)(2), bars jurisdiction over such claims. See Tasbas v.
8
On Sept. 15, 2010, the EEOC’s Office of Equal Opportunity dismissed plaintiff’s May
21, 2010 EEO formal complaint in its entirety (JA 1203-07). The agency concluded that, among
other things, the only claims that plaintiff timely brought to the attention of her EEO Counselor
were her pay-based claims, and those were barred because she had elected to pursue them
through the negotiated grievance process (Id.). The agency pointed out that plaintiff’s
“grievances alleged that [plaintiff], and others similarly situated, were not paid at a level
commensurate with the level of work they were performing, which, according to the Union, was
at the GS-13 level” (JA 1205) and that plaintiff “elected to pursue [her] claims related to [her]
being paid at the GS-12 level through the Agency’s negotiated grievance procedures” (JA 1205).
8
Nicholson, 2009 WL 1458463, *11 (W.D. N.Y. 2009). In response, plaintiff “stipulates to her
[Equal Pay Act] claim being worth no more than $10,000,” see Pl.’s Resp. Br. 20 n.34.
Nonetheless, to the extent that plaintiff’s stipulation may be construed as a request to amend the
Complaint to allege that her claims under the Equal Pay Act are “worth no more than $10,000,”
see id., plaintiff’s request is denied as futile. “Among the grounds that could justify a denial of
leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” Ollie v.
Brown, 565 F. Appx. 131, 135 (3d Cir. 2014) (emph. added). Here, for the reasons explained
above, the Court lacks jurisdiction over plaintiff’s Equal Pay Act claims in that she irrevocably
elected to raise and settle her pay-based claims through a negotiated grievance procedure (JA
1088-89 (Mar. 8, 2010 Step-1 Grievance), 1140-41 (May 3, 2010 Step-2 Grievance), 1178-82
(May 21, 2010 EEO Complaint)).
C. 4/10 Work Schedule and 2010 Performance Evaluation
Defendant argues that “[f]or the same reasons that plaintiff’s pay-based claims are barred
for want of jurisdiction because previously grieved and settled, [plaintiff’s] claims arising out of
her Charlotte District employment that relate to rescission of her 4/10 schedule and the
‘[a]rbitrar[y] lowering’ of her fiscal year 2010 performance ratings” are barred “because she
elected to pursue those matters through a negotiated grievance process, in which they were
resolved.” See Def.’s Br. 6. The local union filed with the Office of Field Programs (“OFP”)
Director, Nicholas M. Inzeo, a grievance on behalf of plaintiff and Employee 20 (“E20”),9
9
The parties have agreed to refer to certain individual employees by a designated
employee number rather than by name. See, e.g., Def.’s Req. for Redaction of Oral Arg.
Transcript at 1 (Doc. 71).
9
regarding the 4/10 schedule rescissions. See, e.g., Step-2 Grievance 10/13/10 (JA 1350-51); Pl.’s
Dep. 147, 148 (JA 293). In a subsequent separate action, the local union also filed a grievance
on plaintiff’s behalf regarding her 2010 performance evaluation, also alleging that she had been
retaliated against due to her previous grievance related to the 4/10 schedule. See Step-2
Grievance 3/2/11 (JA 1419-23). Accordingly, defendant’s request to dismiss plaintiff’s claims
related to rescission of her 4/10 schedule and the alleged arbitrary lowering of her 2010
performance ratings is granted, since she elected to pursue and resolve those matters through a
negotiated grievance process. Those claims are therefore dismissed.
3. TIMELINESS OF CONTACT WITH EEO COUNSELOR ON NON -SELECTION AND SCHEDULERELATED CLAIMS
Before bringing a Title VII, ADEA, or Equal Pay Act suit in federal court, a federal
employee must initiate contact with an equal employment opportunity (“EEO”) counselor
“within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1); see
Winder v. Postmaster Gen., 528 Fed. Appx. 253, 554 (3d Cir. 2013) (citing 29 C.F.R. §
1614.105(a)(1)); Bridges v. Astrue, 2014 WL 1281158, *15 (E.D. Pa. 2014) (citing Winder); see
also 29 C.F.R. § 1614.103(a) (referring to, among other things, complaints of employment
discrimination and retaliation prohibited by Title VII, ADEA, and Equal Pay Act). “This 45-day
time limit operates akin to a statute of limitations: a claim brought more than 45 days after the
date it accrued will be barred.” Id. (citing Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.
1997)); Bridges, 2014 WL 1281158, at *15.
10
Here, Count I of plaintiff’s Complaint – racial discrimination under Title VII – involves
jobs ultimately obtained by Employee 1 (“E1”) and Employee 2 (“E2”), respectively. See Oral
Arg. 4-6. Plaintiff acknowledges that she did not contact an EEO counselor until March 8, 2010,
id. at 14 (see also JA 1194), and she does not specifically dispute that she did not contact an EEO
counselor within 45 days of the time she was aware or should have been aware that she was not
selected, see, e.g., Oral Arg. at 6. The dispute here focuses on whether the operative date on
which the 45-day period began to run was when: (a) plaintiff became aware or should have
become aware that she was not selected to fill the available position; or when she is deemed to
have had reasonable suspicion that she had been discriminated against. See, e.g., id. (“Of course,
the timeliness does apply to the race discrimination claims related to E1 and E2, but the problem
is what is the standard.”); see also Winder, 528 Fed. Appx. at 255.
To the extent that plaintiff challenges defendant’s selection of E1 instead of plaintiff for
the position of GS-13 ADR Mediator in Philadelphia,10 the alleged misrepresentations made by
plaintiff’s supervisor occurred in November 2008 and the selection of E1 for the position (and
thus plaintiff’s non-selection) occurred in April of 2009 (JA 927). The applicable 45-day period
expired no later than in or about June 2009, and again, plaintiff acknowledges that she did not
10
Plaintiff did not apply for this position, but she contends that she was discriminated
against in that defendant discouraged her from applying by making misrepresentations about the
possibility of her being selected for the position. Defendant contended at oral argument, see Oral
Arg. 33, that since, among other things, plaintiff did not apply for the position that E1 was
ultimately awarded, and nothing prevented plaintiff from submitting an application even if it
might have been rejected, plaintiff cannot satisfy a “prima facie case of discrimination by
showing [she] actually applied for the job.” See Lockamy v. Truesdale, 182 F. Supp.2d 26, 35-36
(D. D.C. 2001) (in granting summary judgment in favor of employer on plaintiff’s Title VII
claim, Court rejected plaintiff’s claim as a “deterred non-applicant.”). In any event, as explained
infra, plaintiff’s claims involving the position E1 was awarded are dismissed based on the
expiration of the aforementioned 45-day time limit.
11
contact an EEO counselor until March 8, 2010, well after the 45-day period expired. See Oral
Arg. 14 (see also JA 1194). With respect to plaintiff’s challenge to defendant’s selection of E2
for the available Supervisory General Attorney position of ADR Coordinator for the Philadelphia
District, the 45-day limitations period began to run in early November 2009, when plaintiff
became aware that she was not selected (and that E2 was selected) for the position (JA 1014,
1022), and plaintiff’s limitations period for contacting an EEO counselor expired for that action
in December 2009.
In Winder, our Court of Appeals affirmed the District Court’s grant of summary judgment
in favor of the federal employer and against the plaintiff who claimed discrimination on the basis
of gender and race in violation of Title VII. Winder, 528 Fed. Appx. at 254. In granting
summary judgment, the District Court concluded that the plaintiff had not timely contacted an
EEO counselor about her discrimination claim. Id. In affirming, the Court of Appeals found that
the 45-day limitations period began to run on “the date [the plaintiff] discovered that [the human
resources manager] was not going to promote her to the . . . position.” Id. at 255 (citing Oshiver
v. Levin, Fishbein, Sedran, & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994) (limitations period
begins to run when “the plaintiff has discovered or, by exercising reasonable diligence, should
have discovered (1) that he or she has been injured, and (2) that this injury has been caused by
another party’s conduct”)); see Oshiver, 38 F.3d at 1386 (citing Bohus v. Beloff, 950 F.2d 919,
925 (3d Cir. 1991)). Although the plaintiff in Winder argued that her injury was not complete
until the date the selected employee was hired, citing precedential decisions the Third Circuit
pointed out that “it is well-settled that ‘a claim accrues in a federal cause of action upon
awareness of actual injury, not upon awareness that this injury constitutes a legal wrong.’”
12
Winder, 528 Fed. Appx. at 255 (citing Oshiver, 38 F.3d at 1385, 1391 (holding that the statute of
limitations began to run on the date of the plaintiff’s termination, not on the date she discovered
that a male was hired in her place) (emph. added); Wastak v. Lehigh Valley Hlth. Network, 342
F.3d 281, 287 (3d Cir. 2003) (holding that plaintiff’s injury was complete and discovered when
he was terminated, not when he learned that he was replaced by a younger worker)); see
Bridges, 2014 WL 1281158, at *16.
Similarly, here plaintiff contacted an EEO counselor after the 45-day limitations period
had expired. Accordingly, Count I is dismissed for failure to comply with the applicable 45-day
period. See id. (citing Oshiver, 38 F.3d at 1385, 1391; Wastak, 342 F.3d at 287; Bridges, 2014
WL 1281158, at *16.11
Plaintiff’s Count IV of the Complaint – age discrimination (disparate treatment) under the
ADEA, see Pl.’s Compl. ¶¶ 204-212 – also involves the aforementioned job ultimately obtained
by E2.12 See Oral Arg. 16-17. The parties make the same argument involving the position
obtained by E2. Id. Accordingly, in that plaintiff contacted an EEO counselor after the 45-day
limitations period had expired, Count IV is dismissed as time-barred. See Winder, 528 Fed.
11
Although the doctrine of equitable tolling allows a court to stop the limitations period
from running after a claim has accrued, both the Supreme Court and the Third Circuit have
recognized that the doctrine should be applied “only sparingly.” Winder, 528 Fed. Appx. at 256
(citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)); see also Podobnik v. U.S.
Postal Serv., 409 F.3d 584, 591 (3d Cir. 2005). Plaintiff has the burden of establishing that the
equitable tolling doctrine applies. Id. at 591 (citing Courtney v. LaSalle Univ., 124 F.3d 499, 505
(3d Cir. 1997)); see Winder, 528 Fed. Appx. at 256. In this case, plaintiff fails to demonstrate
circumstances warranting equitable tolling of the 45-day limitations period.
12
Defendant does not challenge plaintiff’s Counts II and III (gender discrimination and
Equal Pay Act claim, respectively), see Pl.’s Compl. ¶¶ 187-203, on the basis of failure to timely
contact an EEO counselor. See Oral Arg. 14-16.
13
Appx. at 255 (citing Oshiver, 38 F.3d at 1385, 1391); Wastak, 342 F.3d at 287; Bridges, 2014
WL 1281158, at *16.
With regard to plaintiff’s Count VI (retaliation), see Pl.’s Compl. ¶¶ 218-225, defendant
requests that the portion of plaintiff’s claims relating to retaliation by denial of a 4/10 work
schedule, see supra note 4, and “telework,” see Oral Arg. 18, be similarly dismissed as untimely
under the 45-day rule, id. At oral argument, plaintiff confirmed that she is no longer pursuing
retaliation claims based on the 4/10 schedule and telework. See Oral Arg. 19. Accordingly, to
the extent that Count VI alleges independent claims of retaliation based on the denial of a 4/10
work schedule and telework, defendant’s motion is granted.13
4. PLAINTIFF’S COUNT II - GENDER DISCRIMINATION UNDER TITLE VII
Count II alleges that plaintiff was discriminated against based on her gender in that
defendant allowed Employee 12 (“E12”), a male ADR Mediator in the Charlotte District, to
“conduct federal sector mediations” and “perform outside mediations,” which allegedly
“enhanced his professional development as well as his income-earning potential post-retirement,”
but failed to provide plaintiff such opportunities. See Pl.’s Compl. ¶¶ 189(c)-(d). In support of
her motion, defendant argues that plaintiff “cannot make out a prima facie gender discrimination
claim based upon [E12’s] performance of federal-sector mediations.” See Def.’s Br. 15-16. At
oral argument, plaintiff’s counsel confirmed that plaintiff is no longer pursuing her claim on the
federal sector mediations issue. See Oral Arg. 64-65. Accordingly, defendant’s motion is
13
Defendant concedes that the remaining claims of retaliation are not barred by the 45-day
rule. See Oral Arg. 19-20.
14
granted with regard to Count II as it relates to defendant’s alleged failure to allow plaintiff to
work on federal sector mediations. See id.
Plaintiff is, however, pursuing her gender discrimination claim as it relates to defendant
allegedly restricting plaintiff from engaging in “outside employment,”14 i.e. “perform[ing]
outside mediations,” but allowing E12 to do so. See Pl.’s Compl. ¶¶ 64-71. As the parties
acknowledge, claims under Title VII are analyzed under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail on a Title
VII claim of gender discrimination, a plaintiff must first establish a prima facie case by showing
that she “suffered an adverse employment action . . . under circumstances that could give rise to
an inference of intentional discrimination” on the basis of gender. See Barker v. Boeing Co.,
2014 WL 1976894, *4 (E.D. Pa. 2014) (citing Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.
2008)) (applying the same test to a race discrimination claim). “[T]here is a low bar for
establishing a prima facie case of employment discrimination.” Scheidemantle v. Slippery Rock
Univ., 470 F.3d 535, 539 (3d Cir. 2006). If the plaintiff makes out a prima facie case, the burden
of production shifts to the defendant “to articulate some legitimate, nondiscriminatory reason”
for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Once the employer
does this, the burden of production “rebounds to the plaintiff, who must now show by a
preponderance of the evidence that the employer’s explanation is pretextual.” Anderson v.
Wachovia Mortg. Corp., 621 F.3d 261, 271 (3d Cir. 2010) (quoting Fuentes v. Perskie, 32 F.3d
14
The parties appear to agree that, as used in this case, “outside employment” refers to
work that EEOC employees are permitted to perform on their own time, and it is work for which
the employee is paid by an entity or individual other than the federal government. See, e.g., Oral
Arg. 68; Pl.’s Dep. 112-13 (JA 284-85); CBA § 43.01 (JA 732-33); Def.’s Statement of
Undisputed Facts (Doc. 40) ¶ 459.
15
759, 763 (3d Cir. 1994)).
In this case, plaintiff has established a prima facie case of gender discrimination by
pointing to evidence that she “suffered an adverse employment action . . . under circumstances
that could give rise to an inference of intentional discrimination” on the basis of gender. See
Barker, 2014 WL 1976894, at *4 (citing Makky, 541 F.3d at 214). In particular, plaintiff points
to evidence that E12, a male mediator in the Charlotte District, was granted approval to engage in
outside mediations (JA 1303-04, 1612, 140, 105, 181, 184-85, 192, 202-04), whereas plaintiff
was required to obtain “prior written approval” from her District Director before each separate
instance of her engaging in outside mediations (JA 1358-59, 1600, 295). Defendant argues that
the gender-neutral reason the District Director permitted E12 to pursue outside employment was
due to E12’s “productivity, whether [the Director] did that rightly or wrongly, that’s what he
did.” See Oral Arg. 66. Defendant further suggests that the evidence indicates that “[t]his guy
(E12) was the most productive down there.” Id. (parenthetical added). In arguing that the
gender-neutral reason given by defendant is merely a pretext, plaintiff points to evidence that
such a purported reason is suspect in that, among other things, evidence indicates that
productivity is not a criterion for allowing someone to engage in outside employment, but rather
the possibility of unethical conduct is the only legitimate consideration on the issue of allowing
outside employment. Id. at 67-68. This is particularly true, plaintiff points out, in light of the
fact that outside employment is performed only during hours when an employee is not working
for defendant, i.e. on days off. Id. at 68. Plaintiff further points out that the evidence reflects
plaintiff’s productivity had not significantly changed on a later occasion when defendant
approved plaintiff for outside employment, indicating that productivity was not the actual reason
16
for defendant’s decision regarding allowing plaintiff to perform outside employment. Id. at 70.
Considering the evidence in the light most favorable to the non-moving party, defendant’s
summary judgment motion is denied with regard to plaintiff’s Count II (gender discrimination) as
it relates to outside employment in that there is a genuine issue of material fact for trial. See
Anderson, 477 U.S. at 250, 256. To the extent that defendant’s motion requests summary
judgment on plaintiff’s Count II as it relates to federal mediations, the motion is granted.
5. PLAINTIFF’S COUNT VI - RETALIATION
To establish a prima facie retaliation case, plaintiff must show that: (1) she engaged in a
protected activity; (2) defendant took an adverse employment action after or contemporaneous
with the protected activity; and (3) the protected activity and the adverse employment action were
causally linked. See Moore v. Phila., 461 F.3d 331, 340-41 (3d Cir. 2006); Weston v. Pa., 251
F.3d 420, 430 (3d Cir. 2001). On the second element, plaintiff must show that the alleged
retaliatory actions were “materially adverse” to her in a way that would have “dissuaded a
reasonable worker from making or supporting a charge of discrimination.” See Burlington N.
and Santa Fe R.R. Co. v. White, 548 U.S. 53, 64, 68 (2006). On the third element, plaintiff must
establish that her protected activity was a “but for” cause of the adverse employment action.
Verma v. Univ. of Pa., 533 F. Appx. 115, 119 (3d Cir. 2013) (applying Univ. Of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013)). Her retaliation claim is subject to the
aforementioned McDonnell Douglas burden-shifting framework. Sanborn v. Postmaster Gen.,
431 F. Appx. 188, 190 (3d Cir. 2011) (citing Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.
2007)).
17
Initially, to the extent that plaintiff’s retaliation claims allege irregularity with the
processing of her EEO complaint, such claims are not actionable under Title VII and are barred
under 29 C.F.R. § 1614.107(a)(8). See Packer v. Garrett, 735 F. Supp. 8, 9-10 (D. D.C. 1990)
(“The only ‘right’ [Title VII] establishes is the right to be free of discrimination. This interest is
wholly preserved, even if the EEOC errs in its processing of the charge, by the right to a trial de
novo.”), aff’d, 959 F.2d 1102 (D.C. Cir. 1992), cert. denied, 506 U.S. 1036 (1992); Young v.
Sullivan, 733 F. Supp. 131, 132 (D. D.C. 1990) (“Title VII creates only a cause of action for
discrimination . It does not create an independent cause of action for the mishandling of an
employee’s discrimination complaints”).
Plaintiff alleges that certain actions of Director Reuben Daniels were adverse and
retaliatory. To the extent that her Complaint alleges independent claims challenging restrictions
on plaintiff working a 4/10 schedule and defendant arbitrarily lowering plaintiff’s 2010
performance evaluation, for reasons explained above, defendant’s motion is granted since
plaintiff elected to resolve those claims through the negotiated grievance process. Furthermore,
plaintiff’s counsel acknowledged at oral argument that plaintiff is not pursuing these claims, as
well as independent claims challenging restrictions on telework.15 Accordingly, defendant’s
request to dismiss plaintiff’s claims arising out of the rescission of her 4/10 schedule or telework
and the alleged arbitrary lowering of her year 2010 performance ratings is granted.
15
In particular, plaintiff’s counsel acknowledged that plaintiff is no longer proceeding on
these claims as “straight retaliatory act[s], but we will be referring to [them] as antagonistic
course of conduct. . . . Again, not a retaliatory act, but evidence that corroborates later facts.” See
Oral Arg. 82-83. Plaintiff also specifically confirmed that she is no longer pursuing retaliation
claims related to telework. See Oral Arg. 19 (conceding claims related to 4/10 schedule and
telework as independent retaliation claims).
18
However, with respect to plaintiff’s remaining retaliation claims based on defendant’s
actions toward her related to permission to perform outside employment, intentional
manipulation of plaintiff’s case inventory, and an antagonistic course of conduct, see, e.g., Oral
Arg. 83-100, defendant’s motion is denied. As with plaintiff’s gender discrimination claim
discussed above, viewing the evidence in favor of the non-moving party, plaintiff has established
a prima facie case of retaliation by pointing to evidence supporting acts of retaliation. While
defendant has articulated legitimate, nondiscriminatory reasons for the adverse employment
actions, plaintiff has pointed to sufficient evidence to indicate that defendant’s explanation is
pretextual. Accordingly, considering the evidence in the light most favorable to the non-moving
party, there are genuine issues of material fact for trial, and defendant’s summary judgment
motion is denied with regard to plaintiff’s Count VI (retaliation) as it relates to outside
employment, intentional manipulation of plaintiff’s case inventory, and an antagonistic course of
conduct. See Anderson, 477 U.S. at 250, 256.
6. CONCLUSION
Defendant’s motion is denied with respect to Count II (gender discrimination) of
plaintiff’s Complaint to the extent plaintiff claims that defendant improperly restricted plaintiff
from performing outside work. Defendant’s motion is denied with respect to plaintiff’s Count VI
(retaliation) to the extent plaintiff claims that defendant improperly restricted her from
performing outside employment, manipulated plaintiff’s case inventory, and acted in an
antagonistic course of conduct. Defendant’s motion is granted in all other respects, and
plaintiff’s motion for partial summary judgment is denied.
19
In particular, plaintiff’s pay-based claims, her claims alleging impermissible restrictions
on a 4/10 work schedule, and her claims of arbitrary lowering of 2010 performance evaluations
are dismissed. She irrevocably elected to resolve those claims through the negotiated grievance
procedure. In addition, plaintiff confirmed at oral argument that she is no longer pursuing Count
V (age discrimination - disparate impact), and she conceded the dismissal of any independent
claims based on restrictions on a 4/10 work schedule and telework. Therefore, these claims are
also dismissed. With respect to plaintiff’s claims challenging defendant’s failure to select her for
particular positions (“non-selection claims”), defendant’s motion is granted in that plaintiff failed
to contact an EEO counselor within the required 45-day period.
With regard to plaintiff’s Count II (gender discrimination), defendant’s motion is denied
with respect to plaintiff’s claim that defendant restricted plaintiff from performing outside
employment. In all other respects, defendant’s motion is granted with respect to Count II.
Plaintiff has conceded the dismissal of Count II as it relates to defendant restricting plaintiff from
performing federal mediations.
With respect to plaintiff’s Count VI (retaliation), defendant’s motion is denied as it
relates to plaintiff’s claims based on restrictions put on plaintiff performing outside employment,
manipulation of plaintiff’s case inventory, and an antagonistic course of conduct. Defendant’s
motion, as it relates to Count VI, is granted in all other respects.16
An appropriate Order follows.
16
In support of plaintiff’s Motion for Partial Summary Judgment, plaintiff argues that
summary judgment should be granted in her favor on her claims of race and age discrimination
and on her pay-based claims. For the reasons explained above, these claims are dismissed.
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?