Reardon v. Herring et al

Filing 13

MEMORANDUM OPINION. See for complete details. Signed by District Judge Robert E. Payne on 06/03/2016. (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

~ -""'--"--="=--__;;;IE'=---,~
.

~

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~

JUN - 3 2016
ANN MARIE REARDON,

CLERK, U.S. DISTRICT COURT
RICHMOND, VA

Plaintiff,

v.

Civil Case No. 3:16-cv-34

MARK R. HERRING, in his Official
Capacity as Attorney General
of Virginia, et al.,
Defendants.
MEMORANDUM OPINION

This matter is before the Court on DEFENDANTS'
DISMISS

(ECF

No.

5).

For

the

reasons

set

forth

MOTION TO
below,

the

motion will be granted in part and denied in part.
BACKGROUND

Plaintiff, Ann Marie Reardon,
ECF

No.

1)

on

January

15,

2016,

filed a Complaint
alleging

that

("Compl.,"

Mark

Herring

("Herring"), acting in his official capacity as Attorney General
of

Virginia,

and

(collectively,
("EPA") . 1

the

Office

"Defendants")

The

factual

of

the

Attorney

General

("OAG")

violated the Equal Pay Act of 1963

allegations

forming

the

bases

for

Both Herring and the OAG are named defendants, but the parties
now agree that the OAG is not sui juris and thus cannot be sued.
Hence, the OAG will be dismissed as a defendant.
Also, the OAG
shall be removed from the style of the case, which henceforth
will be Ann Marie Reardon v. Mark R. Herring, in his official
1

Reardon' s

claims are set out below as they are pleaded in the

Complaint.

All

reasonable

inferences

are

drawn

in

Reardon' s

favor.
Reardon was employed by the OAG from approximately December
23,

2010 through June 15,

( "AAG") .

( Compl. 91 11) .

2015 as an assistant Attorney General
Reardon was admitted to the Virginia

State Bar as a licensed attorney in 1984, and practiced law from
1984 until 1988 and again from 2006 to the present.
19.

Id. 9191 18-

Thus, at the time Reardon was hired, she had been a member

of the Virginia Bar for 26 years, but had only practiced law for
eight years.

Reardon's duties as an AAG included, but were not

limited to:
•

conducting

criminal

prosecutions

on

behalf

of

the

Attorney General;
•

conducting prosecutions of certain types of matters as a
Special Assistant United States Attorney;

•

creating
Attorney

and

administering

General's

the

REALITY

awareness

project,

campaign

the

against

prescription drug abuse;
•

reviewing
General

and
on

making
all

recommendations
requests

to

to

the

conduct

Attorney
criminal

investigations of state and local elected officials;
capacity as Attorney General of Virginia.
The Clerk will amend
the style in the CM/ECF system and all pleadings filed hereafter
shall bear the new style.
2

• providing

advice

representation

legal

and

Departments of State Police,

Criminal

to

the

Justice Services,

and Alcohol Beverage Control;
•

providing legal guidance and prosecutorial assistance to
the

Department

of

Environmental

Quality

and

local

jurisdictions regarding environmental crimes committed in
the Commonwealth of Virginia;
•

reviewing public

safety bills

submitted to

the General

Assembly; drafting opinions for the OAG; and
•

completing any other duties as assigned.

Id. 9I 62.
During

the

term

of

Reardon's

employment,

the

OAG

used

matrix guidelines to determine attorney classification and pay.
Id.

9I 22.

In the matrix,

the

classification of attorneys

is

based on the number of years from the date of admission to the
bar.

Id.

9I

24.

When

Reardon

was

hired

in

2010,

she

was

classified as an "AAG III," a category that typically includes
attorneys who have been admitted to the bar for 10 to 15 years.
Id.

9I

25.

$70,000.00
Id. 9I 27.

The
to

2011 matrix guidelines

$90,000.00

for

attorneys

set

a

salary range

classified as AAG

Reardon's starting salary was $62,000.00.

of

III.

Id. 9I 26.

Sometime in· 2011, Reardon discovered that her annual salary
was below the salary range for attorneys classified as AAG III,
and brought the discrepancy to the attention of Patrick Dorgan
3

("Dorgan"),

Id.

a Senior Assistant Attorney General.

In response,
$63,000.00.

Reardon' s
Id.

annual

salary was

<][<][

28-29.

increased in 2012

to

30.

<][

In 2013, the OAG updated its matrix guidelines, and set the
Id.

AAG III salary range at $71,400.00 to $91,800.00.
On

April

25,

( "Cuccinelli")
salary

to

then-Attorney

2013,
notified

Reardon

$ 64, 000. 00,

in

of

General

an

recognition

evaluation for the previous year.

Id.

increase
of

<][

Ken

<][<][

31-32.

Cuccinelli
her

annual

excellent

her

in

annual

33.

In 2014, Reardon again complained that her salary was below
the matrix guidelines, this time to Linda Bryant ("Bryant"), the
Deputy Attorney General responsible for Reardon's section at the
OAG.
to

Id.
a

<][

37.

Reardon also raised the issue in her response

questionnaire

sent

to

all

OAG

attorneys

in

early

2014

requesting feedback regarding the OAG's policies and practices.
Id.

<][<][

35-36.

In "late 2014," Reardon mentioned to Dorgan and to Michael
Jagels,
she

who then was the supervisor of Reardon's section,

was

"paid

attorneys
annual
existing
Reardon

at

salary
2013
also

below
the
was

the

OAG."

matrix
Id.

guidelines

approximately

matrix

guidelines

complained

At

39.

<][

"numerous

4

and/or

that

$65,280.00,
for

AAG

times"

time,

male

Reardon' s

well

IIIs.
in

other

that

below
Id.

"early

<][

2015"

the
41.
to

Jagels and Bryant about "being paid below the matrix guidelines
and/or other male attorneys at the OAG."
In

2015,

the

OAG again

Id. ! 42.

issued updated matrix guidelines,

which set the AAG III salary range at $90,800.00 to $136,200.00.
Id.

!

43-44,

On

48.

May

29,

2015,

all

OAG

attorneys
Id. !

provided additional details about the new guidelines.
The

e-mail

stated,

in part,

"the

amount by which

were

your

45.

salary

falls under the new minimum for your classification (if it falls
under the new minimum at all)

represents the amount of the OAG-

sponsored pay adjustment any individual attorney will receive in
September."
Less

Id. ! 46 (emphasis in original).

than

three

guidelines,

Reardon

terminated.

Id. !

weeks
was

67.

after

informed

announcing
that

her

the

2015

matrix

employment

was

At that time, Reardon's salary was still

"far below" the minimum salary for the AAG III classification.
Id. !

49.
There

were

six

including Reardon;
' ' 50-51.

attorneys

in

Reardon's

section

in

the other five attorneys were all male.

2015,
Id.

The Complaint alleges that the five male attorneys

had between 13 and 21

years of bar experience, 2 and that they

The Complaint does not allege the specific year that each of
the male attorneys in Reardon' s section was admitted to the
practice of law; rather, the Complaint states only that each
attorney "has" a certain number of years of bar experience,
ranging from 13 to 21 years.
(Compl. !! 53-57).
Therefore, it
is difficult to discern whether these numbers are current as of
2

5

received salaries ranging from $76,584.00 to $95,000.00 in 2014.
Id.

<JI<JI

AAG Ills,
Id.

All five male attorneys were also classified as

53-57.

<JI<JI

and their responsibilities were similar to Reardon's.

53-57,

Thus,

63.

in 2014,

Reardon's annual salary was

$11, 304. 00 less than the lowest paid male AAG III attorney in
Reardon's section.
Reardon

Id.

asserts

allegations.

<JI

59.

In Count I,

based

claims

two

on

foregoing

the

Reardon asserts that the discrepancy

between her salary and the salaries of the male attorneys in her
section was the result of gender discrimination in violation of
the EPA.

Id.

<JI<JI

69-77.

termination of her

In Count II,

employment

Reardon asserts that the

constitutes unlawful

retaliation

that was caused by her complaints to supervisors concerning her
salary.

Id.

<JI<JI

78-83.

Herring and the OAG filed a motion to dismiss
the case for several reasons.
of
Fed.

subject matter
R.

Civ.

P.

(Defendants'

Support of Motion to Dismiss

("Def.

The

EPA

motion

asserts

that

the

5)

First, the motion alleges a lack

jurisdiction and thus
12 (b) (1).

(ECF No.

seeks

dismissal

Memorandum of Law in

Mem.," ECF No.

does

under

not

apply

6)
to

at

5).

Reardon

the filing of the Complaint, or if the numbers refer to the
attorneys' years of bar experience as calculated from 2015,
2014, or the dates that they were hired.
For purposes of this
Memorandum Opinion, the Court assumes that the male attorneys'
years of bar experience, as alleged in the Complaint, were
calculated from 2015, when the relevant adverse action occurred.
6

because she was an appointee "on the policy-making level," and
therefore

not

Defendants'
status

is

an

"employee"

motion
an issue

takes
of

within

the

the

position

standing,

meaning

that

of

the

Reardon' s

and therefore

EPA.

employee

jurisdictional.

Id.
The Supreme Court has held that a defendant's status as an
"employer"

within

discrimination

laws

jurisdictional

the

one.

(2006).
a

is

meaning
a

substantive

Arbaugh

v.

The Court explained that,

statutory

limitation

on

federal

of

issue,

employment

rather

Y & H Corp.,

546

than
U.S.

a
500

"when Congress does not rank

coverage

as

jurisdictional,

courts

should treat the restriction as nonjurisdictional in character."
Id. at 516.

The Supreme Court has not yet addressed whether the

same principle governs

a

plaintiff's

status

as

an "employee";

however, since Arbaugh, lower courts have consistently held that
a

plaintiff's

federal

status

employment

suited for

as

an

"employee"

discrimination

resolution under

than Rule 12 (b) ( 1),

Fed.

within

laws
R.

is

Civ.

the

meaning

of

typically

better

12(b) (6),

rather

P.

because the plaintiff's employee status is

"intertwined with the facts

that are central to the merits of

the dispute" and implicates an element of the plaintiff's prima
facie case.
371

(10th

1764722,

at

See, e.g., Xie v. Univ. of Utah, 243 F. App'x 367,
Cir.
*5

2007);

Price

v.

Waste

(D.

Apr.

30,

2014);

Md.

7

Mgmt.,

Inc.,

German v.

2014

Akal

WL

Sec.,

Inc.,

2011 WL 5974619,

ex rel.

Suh v.

( E. D. N. C.
motion
denied.

(D.

Md.

HCA-The Healthcare Co.,

June 2 3,

to

at *8 n.14

dismiss
However,

2 0 0 9) .
is
the

under

"employee"

29,

2011);

2009 WL 1834586,

Accordingly,

brought

Nov.

at

*3

to the extent that the

Rule

issue

U.S.

12 (b) ( 1) ,

will

be

susceptible

remains

it

to

resolution under Rule 12 (b) ( 6) .
The
12 (b) ( 2)

motion
for

also

seeks

dismissal

lack of personal

under

Fed.

R.

jurisdiction because

Civ.

the OAG is
Reardon

not sui juris and thus may not be sued as an entity.
agrees.

Thus,

P.

to the extent that the motion is based on Rule

12(b) (2), it will be granted upon the agreement of the parties.
Lastly,
12(b) (6)

the motion

seeks

dismissal

under

Fed.

R.

Ci v.

P.

because Reardon has not adequately alleged a claim for

either discrimination
the EPA.

(Count I)

or retaliation

(Count II)

under

(Def. Mem. at 14-22).

DISCUSSION
A. Legal Standard: Fed. R. Civ. P. 12(b) (6)

Fed.

R.

Civ.

dismissal of a
upon

which

P.

12(b) (6)

permits

a

party

claim if the complaint fails

relief

can

be

granted."

Fed.

to

move

"to state a
R.

Ci v.

P.

for
claim

8 (a) ( 2)

requires "a short and plain statement of the claim" showing that
the

pleader

dismiss,

a

is

entitled

complaint

to

must

relief.
contain

8

"To

survive

sufficient

a

motion

factual

to

matter,

accepted as true,

to 'state a claim to relief that is plausible

on

Ashcroft

its

face."'

v.

Iqbal,

556 U.S.

662,

678

(2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Courts

should

allegations

in

assume

the

the

veracity

Complaint,

and

of

all

should

deny

dismiss where those well-pleaded allegations
claim for relief.

well-pleaded
a

motion

to

state a plausible

A claim is "plausible" when the

Id. at 679.

plaintiff pleads facts sufficient to allow the court to draw the
reasonable

inference

alleged misconduct.

that

defendant

is

liable

Twombly, 550 U.S. at 556.

grant a motion to dismiss,
nothing more

the

than

legal

however,

for

the

The court should

where the allegations are

conclusions,

or

where

they

permit

a

Iqbal,

court to infer no more than a possibility of misconduct.
556 U.S. at 678-79.
Although

courts

generally

do

evidence in deciding motions under Rule 12 (b) ( 6),
consider ... documents
documents

sufficiently

converting the
as

the

central

referred

[motion]

authenticity of

Nutritionals,

LLC

(E.D. Va. 2009)

v.

to

a

plaintiff's

and

into one for summary judgment,

so long

documents
Ltd.,

(citing Witthohn v.

396, 396 (4th Cir. 2006)).

9

the

claim,

without

Dornoch

in

"a court may

complaint

the

to

extrinsic

consider

not

is

667
Fed.

not
F.

disputed."

Supp.

Ins. Co.,

2d

621,

PBM
626

164 F. App'x

B. Reardon is Not
Counts I and I I

To

bring a

Exempt

from

claim under

the

the

Protections

EPA,

a

of

the

plaintiff must

EPA:

be

an

"employee" as that term is defined by the Fair Labor Standards
Act

("FLSA"). 3

Applications

Int'l

u.s.c.

29

Corp.,

§

649

216(b);

F.3d

226,

Dellinger
229

(4th

v.

Cir.

Sci.
2011).

Herring seeks dismissal of Counts I and II because, in his view,
Reardon' s

position

is

excepted

from

the

FLSA' s

definition

of

employee.
The FLSA' s def ini ti on of employee includes "any indi victual
employed by an employer[,]" 29 U.S.C.
certain state and local
ambit
not

of the
include

statute.
any

§

203(e) (1),

government workers
Specifically,

individual

employed

except that

are not within the

the term "employee" does
by

a

state,

political

subdivision of a state, or an interstate governmental agency:
( i)

who is not subject to the civil service laws of the
or
agency
which
State,
political
subdivision,
employs him; and

(ii)

who(I)

holds a public elective office of that
State, political subdivision, or agency,

(II)

is selected by the holder of such off ice to
be a member of his personal staff,

See, e.g., Pinkett v. Apex Commc'ns Corp., 2009 WL 1097531, at
*10 (E.D. Va. Apr. 21, 2009) (noting that "the EPA is part of
the Fair Labor Standards Act of 1938 ( 'FLSA') and employs the
FLSA's enforcement scheme").

3

10

(III)

to

(IV)

is
an
immediate
adviser
to
such
officeholder
with
respect
to
constitutional
or
legal
powers
of
office, or

an
the
his

(V)

29 U.S.C.

is appointed by such an officeholder
serve on a policymaking level,

is an employee in the legislative branch or
legislative body of that State, political
subdivision, or agency and is not employed
by the legislative library of such State,
political subdivision, or agency.

203 (e) (2) (C).

§

Herring

contends

"employee" under the

that

Reardon

does

not

qualify

not

subject to the

FLSA because she was

as

an

civil service laws of Virginia in her role as an AAG III and was
"appointed

by

policymaking
Herring

[an

level."

asserts

policymaking

elected]
(Def.

that

level"

responsibilities

officeholder

Reardon
because

that

Mem.
was
she

shared

at

to

7-14).

"appointed
"enjoyed

one

serve

on

a

Specifically,
to

a

serve ... on

broad

commonality--they

potential to shape the policy of the Commonwealth."

scope
had

a
of

the

(Def. Mem.

at 13) .
Reardon

concedes

General,

an

service

laws

Therefore,

that

elected

the

in

her

she

official,
role

dispositive

was

appointed

and

was

an

AAG.

as

question

is

not

the

subject
(Pl.

whether

appointed ... to serve on a policymaking level."

11

by

Mem.

Attorney
to

civil

at

11).

Reardon

"was

1. Undisputed Principles

Al though the parties are at odds over the meaning of the
statutory terms and the applicable controlling legal authority,
they are in agreement on certain principles.

First, they agree

that whether an appointee

exception to the

EPA' s
law,

coverage

is

a

falls

question

within this

that

is

controlled by

"federal

with state law relevant only insofar as it describes the

plaintiff's

position,

which he is hired,
Gregory,
agree

818

that,

including his

supervised,

F.2d 1114,
in making

1116

this

duties

and the manner

and fired."
(4th

Cir.

United States v.

1987).

determination,

in

Second,

courts must

they

"focus

principally on the responsibilities and powers inherent in the
position,

rather than on the actions of specific indi victuals,

including

plaintiffs,

Kelley v.

City of Albuquerque,

who

hold

or

have

held

the

position."

542

F.3d

802,

810

(10th

Cir.

2008); see also Butler v. New York State Dept. of Law, 211 F.3d
739, 749 (2d Cir. 2000)
of

the

position,

determine

not

whether

Third,

they

agree

making

employee

when the duties

(the court must "look at the attributes
the

actual

the

employee

that

"an

frequently

performance
was

a ... high

individual's
poses

a

of

fact

status

the

job,

to

policymaker").
as

a

policy-

question ... However,

and responsibilities of a particular position

are clearly defined by law and regulations, a court may resolve
this

issue

without

the

aid

of
12

a

finder

of

fact."

Vargas-

Harrison v.
Cir.

2001)

Racine Unified Sch.

Dist.,

272

(internal citations omitted) .

F.3d 964,

Finally,

972

(7th

they do not

dispute that the EPA's "broadly remedial" purposes provide the
backdrop

for

this

417 U.S. 188, 208

analysis.

Corning Glass

Works

v.

Brennan,

(1974).

2. Statutory Text

The

statute

excepts

from

the

def ini ti on

of

an

"employee"

indi victuals "appointed ... to serve on a policymaking level."
U.S.C. § 203(e) (2) (C).

29

However, the statute does not define the

term "policymaking level."
statutory interpretation,

Thus,

under standard principles of

"absent explicit legislative intent to

the contrary," the term "policymaking level" is to be given its
"plain
670,

and

675

100

(4th Cir.

F.3d 1124,

omitted) .

2010)

1133

to

government

or

political

1996)

(internal

Oxford

the

"policymaking"

policymaking means

Carver,

(quoting Carbon Fuel Co.

(4th Cir.

According

compound word
noun,

Broughman v.

ordinary meaning. "

English

has

two

quotation marks
Dictionary,

of policies,

Oxford

F. 3d

USX Corp;,

similar meanings.

"the devising
party."

v.

62 4

English

esp.

the
As

a

by a

Dictionary,

http://www.oed.com/view/Entry/146842?redirectedFrom=policymaking
#eid29476759

(last

"policymaking"

means

making of policy."

"a

person

visited

May

"that

Id.

responsible

23,

makes

As

2016).
or

is

an

associated

adjective,
with

the

Dictionary.com defines "policymaker" as
for

making
13

policy,

especially

in

government."

Dictionary.com,

http://www.dictionary.com

(last

visited May 23, 2016).
Because both definitions are driven by the word "policy,"
the

Court

must

also

examine

the

meaning

of

that

word.

Oxford Dictionary def in es policy to mean " [ s] ens es
public

or

politic

practice."

Oxford

English

The

related to
Dictionary,

http://www.oed.com/view/Entry/146842?rskey=gHUTDe&result=l#eid
(last visited May 23, 2016) .
be

"a

course

ruler,

of

action

political

Dictionary.com defines "policy" to

adopted

and

pursued by

etc."

party,

a

government,

Dictionary.com,

http://www.dictionary.com (last visited May 23, 2016).
And,

because

the

positional

reference

in

the

statute

is

defined as a "level" (modified by the adjective "policymaking"),
the Court must examine the term "level."

The word "level" is

defined as "[a] plane or status in respect of rank or authority;
position

in

a

hierarchy."

Oxford

English

Dictionary,

http://www.oed.com/view/Entry/107653?rskey=MMzKSq&result=l#eid
(last visited May 23, 2016).
qualifying adjective.

Id.

The word is frequently used with a
That is the case when the adjectival

form of "policymaking" precedes the word "level."
These

words,

given

their

usual

meaning,

teach

that

one

"appointed ... to serve at a policymaking level" is of a rank or
position in government to make or devise,
making or devising of,

a

or to assist in the

course of action that
14

is adopted or

pursued by a government.

In sum,

the common usage of the term

"policymaking level" refers to high level officials who play an
active

role

objectives.

in

formulating

However, the decisional law has not found that the

statutory words,
clear

to

governmental

implementing

or

be

accorded their usual meaning,

the

disposi ti ve

predicate

for

are sufficiently

applying

the

term

"policymaking level" to particular positions.
If this

issue

had to be

resolved on

a

clean slate,

the

Court would conclude that the words of the statute, given their
usual meaning,
decision.

provide

a

sufficiently clear textual basis

for

However, courts have not been so persuaded.

3. Legislative History

Because
meaning

courts

of

the

have

not

statutory

generally

language

regarded

as

the

dispositive,

plain
it

is

appropriate to examine the legislative history for what guidance
it may give

respecting Congress'

See,

intent.

e.g. ,

Black &

Decker Corp. v. United States, 436 F.3d 431, 436 (4th Cir. 2006)
(citing Yi v.
Cir.

2005)).

concerning

§

Fed.

Bureau of Prisons,

Though

203 (e) (2) (C),

language to Title VII
there

is

no

VII

is

FLSA,

is

the

little

amendment

F.3d 526,
legislative

(4th

history
identical

generated considerable debate.

Because

history

that

533

added

legislative

"employee" in the
Title

there

412

concerning

the

definition

of

and because the identical language in

accompanied

by

extensive
15

legislative

history,

courts frequently "accord substantial weight to the legislative
history

of

the

cognate

203(e) (2) (C)] ."
(Blackmun,

J.,

Title

Gregory v.
dissenting);

VII

provision

Ashcroft,

in

501 U.S.

construing

452,

see also Marburger v.

Twp., 225 F. Supp. 2d 503, 512

489

[§

(1991)

Upper Hanover

(E.D. Pa. 2002).

When Congress decided to amend Title VII to include states
and local

governments

as

employers,

Senator

Ervin,

that the

(unamended)

who

original bill

did not

The absence of such a provision

contain any employee exclusion.
troubled

the

repeatedly

expressed

his

concern

definition of "employee" would be construed

to reach those "persons who exercise the legislative, executive,
and judicial powers of the States and political subdivisions of
the States" and their advisers,
undue power over states'
(1972).

Section

the

118 Cong.

self-governance.

701 (f)

incorporated into

and thereby give federal courts

of

FLSA as

Title
§

VII,

which

203 (e) (2) (C),

was

Rec.

1838
later

was

directed at

addressing this concern.
In

discussing

conference managers'
of

the

appointed

conferees
by

the

"policymaking

level"

exception,

the

report emphasizes that it "is the intention
to

such

exempt
elected

elected
officials

officials ... and
as

advisors

persons
or

to

policymaking positions at the highest levels of the departments
or

agencies

officers,

of

State

and persons

or
with

local

governments,

comparable

16

such

as

responsibilities

cabinet
at

the

local level. II

JOINT EXPLANATORY STATEMENT OF MANAGERS AT THE CONFERENCE ON

H.R. 1746, 92nd Cong. 2d Sess., reprinted in 1972 U.S. Code Cong.
&

Admin.

News

Statement")

("USCCAN")

(emphasis

Conference Committee,
in

Title

2179,

added) .

2180

("Joint
the

Similarly,

which developed the final

stated

VII,

2137,

specifically

that

the

Explanatory
House-Senate

language found

amendment

exempts

appointees of
[elected]
officials on the
highest policymaking levels such as cabinet
members or other immediate advisors of such
elected
officials ... This
exemption
is
intended to be construed very narrowly and
is in no way intended to establish an
overall narrowing of the expanded coverage
of State and local governmental employees as
set forth in section 70l(a) and (b) above.
SECTION-BY-SECTION ANALYSIS OF H.R. 1746,
added).

This

legislative

s.

history

REP.

681,

could

at 2

not

(emphasis

be

clearer:

Congress intended that the exception be very narrowly construed,
and that the exception should apply only to officials "at the
highest levels" of their respective departments.
4 . Decisional Law

That

clarity

decisional law,

of

legislative

history

notwithstanding,

rather than legislative history, ·represents the

principal source of instruction as to the meaning of the term
"policymaking
significant

level."

circuit

The

split

decisional
respecting

law
the

manifests
appropriate

a

rather

standard

for determining whether an appointee serves "on the policymaking
17

level" and how that standard should be applied.

There are three

principal lines of authority.
Before turning to the three approaches,
to note that

the

exemptions

found at

it is

29 U.S.C.

appropriate
203(e) (2) (C)

§

are "essentially identical" to the exemptions to the definition
of

"employee"

1964.

found

Brewster

in

v.

Title

Barnes,

~~~~~~~~~~

1986).

VI I
788

the

F.2d

Civil

985,

990

Rights
n.7

The Age Discrimination in Employment Act

contains identical language.
Wood,

of

315

F.3d

concurring)
definition

696,

(noting
in wide

203 (e) (2) (C)]

708
that

(7th

in

this

(4th

Cir.

( "ADEA")

also

Sidley Austin Brown &

v.

Cir.

of

2002)

def ini ti on

is

"a
[§

[the

ADEA and

of

J.,

(Easterbrook,

Language essentially identical to

use.

appears

E.E.O.C.

Act

five

"employee"

other

statutes],"

such that "a definition may be secured from opinions that have
addressed
widely

these

other

statutes.") .

acknowledged.

Therefore,

"employee" in § 203 (e) (2) (C)
Title

VII

jurisprudence

This
the

statutory
analysis

kinshift
of

the

is

term

of the EPA is informed by ADEA and
in

addition

to

decisional

law

interpreting the EPA.
a. The Three Differing Approaches

The Seventh Circuit,
in

4

Title

VII 4

and

the

in assessing identical statutory text
ADEA, 5

42 U.S.C. § 2000e(f).
18

has

interpreted

the

relevant

exception
either

broadly

to

directly

include

or

any

position

indirectly,

that

meaningful

"authorizes,
into

input

governmental decision-making on issues where there is room for
principled

disagreement

Americanos v.
Seventh

Carter,

Circuit's

on

74

decisions in Elrod v.
Branti

v.

exception").

Finkel,

work

their

141

of

implementation."

(7th Cir.

the

statutory

interpretation of the

Burns,
445

427 U.S.

U.S.

507

347

The

exclusion

is

First Amendment

(1976)

(1980)

1996).

and augmented

("the

Elrod-Branti

Herring urges this approach.

The Second Circuit,
exception

or

F.3d 138,

construction

based on that Circuit's

in

goals

closely

has held that the

"only

applies

on the other hand,
to

such

as

and

be

accountable

with

appointed them."

appointees
to

Butler, 211 F.3d at 747.

the

would

normally

official

who

The Second Circuit's

focus on proximity between the plaintiff's position and that of
the

elected

emphasizes

official
that

the

personal

relationship"

official.

Anderson v.

(10th Cir. 1982).

is

echoed

by

exception
between

the

Tenth

requires
the

"an

appointee

City of Albuquerque,

Circuit,

which

immediate
and

and

elected

690 F.2d 796,

801

This approach is pressed by Reardon.

The parties have largely ignored an intermediate approach,
articulated by the Eighth Circuit.
"policymaking level" inquiry turns
5

29

u.s.c.

§

630 (f).
19

Under that formulation,

the

on the extent to which the

plaintiff's position is "entrusted with extensive decisionmaking
authority and discretionary power[.]"

Gregory v. Ashcroft,

898

F.2d 598,

501 U.S.

(1991);

see

(S.D.

Iowa

603

(8th Cir.

1990),

also Brown v. Polk Cty.,
1992)

(holding that

department

was

Iowa,

452

432,

437

of county information services
"policymaker"

a

though

than

811 F. Supp.

director

not

"responsibilities,
administrative

a

aff'd,

supervisory

discretionary"

in

and

because

nature,

"any

were

ultimate

his
more

decision

making on important, policy initiatives" was left to plaintiff's
superiors) . 6
The

Eighth

Circuit

has

offered

a

non-exhaustive

list

of

factors to be considered in determining whether an appointee is
"on

the

policymaking

level,"

[appointee] has discretionary,
powers,
the

(2)

whether the

appointing

v.

Iowa,

843

other grounds,
U.S.

104

F.2d

276,

and

278-79

(3)

(8th

Sav.

(alterations

whether

the

serves at the pleasure of
whether

Gregory, 898 F.2d at 604

Astoria Fed.

(1991)

"(1)

rather than solely administrative

[appointee]

authority,

formulates policy."

including:

in

&

Cir.

the

(quoting Stillians

1988),

Loan Ass'n v.
original;

[appointee]

abrogated
Solimino,

internal

on
501

citations

omitted) ) .

It appears that no other Court of Appeals has developed a
Indeed, the
comprehensive framework for addressing this issue.
Third, Fifth, and Ninth Circuits, like the Fourth Circuit, have
not yet offered any guidance on the meaning of this exception.
6

20

b. The Appropriate Standard

In construing the identical exception under the ADEA,
First

Circuit

aptly

explained

that

the

task

in

applying

the
the

exception is to strike the best "balance between the protection
of employees from [wage] discrimination, and the protection of a
state's--and
itself."

its

people's--ability

E.E.O.C.

Cir. 1988).

v.

to

Massachusetts,

independently

858

F.2d

52,

govern

56-57

(1st

For several reasons, the Eighth Circuit's test best

achieves that objective.
First, the Eighth Circuit's approach is consistent with the
ordinary meaning

of

the

statutory text

and

follows

logically

from the plain language of the statute, by examining not whether
an appointee is a policymaker, but rather, whether an appointee
is

"on

Under

the

policymaking

this

policy"

is

framework,
a

factor

whether
to

29

level."

be

an

U.S.C.

appointee

considered,

but

203(e) (2) (C).

§

actually
the

fact

"makes
that

an

appointee does not "make policy" in the traditional sense is not
dispositive.
Second,
legislative
sense

focus

al though
history
on

the

the
in

Eighth

Circuit

formulating

appointee's

its

declined
approach,

decision-making

to
its

rely

on

common-

authority

and

whether the appointee's position is one that actually influences
formulation of policy necessarily guides courts toward results
that

stay true

to

the

clear and well-documented congressional
21

intent

that

the

exception

be

very

narrowly

construed.

And,

statutes are to be interpreted to affect the intent of Congress
where

that

can

be

constitutionally

accomplished.

See,

e.g.,

Broughman, 624 F.3d at 674.
Third,
appropriately
inquiry,

the

Eighth

sensitive

Circuit's
to

the

test

fact-specific

without leading to conflation with,

flexible

is

nature

of

and
this

or consumption of,

either of the surrounding statutory exceptions,

which exempt an

elected official's personal staff and immediate legal advisers
from the coverage of the EPA.
Finally, and perhaps most importantly, the approach adopted
by

the

Eighth Circuit

does

not

suffer

from

the

flaws

of

the

approaches taken by the Second and Seventh Circuits, as urged by
Reardon and Herring, respectively. 7

The Court declines to adopt

either of those approaches, for the reasons set forth below.

7

Because the Court declines to subscribe to the Seventh
Circuit's approach to this issue, the Court necessarily cannot
follow the decision in Stokes v. Benham, 2015 WL 4139274 (E. D.
Va. July 8, 2015), which is of persuasive, but not precedential,
effect.
See Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011)
("A decision of a federal district court judge is not binding
precedent in either a different judicial district, the same
judicial district, or even upon the same judge in a different
case.") (citing 18 J. Moore et al., Moore's Federal Practice §
134. 02 [l] [d] (3d ed. 2011)).
22

i.

To

begin,

Circuit

is

exception

the

The Problems
Approach
sweeping

antithetical
that

to

Congress

with

the

approach
the

Seventh

taken

narrow

intended.

by

Circuit's

the

construction

Congress

quite

Seventh
of

the

clearly

specified that those excepted from the reach of the definition
of "employee" were

to be the people who were

appointed by an

elected official to serve "on a policymaking level."

These were

described as positions at the highest levels of government.
noted

above,

Statement

the

and

conference

the

managers'

House-Senate

Joint

Conference

As

Explanatory

Committee

both

emphasized that the amendment exempts only
appointees of
[elected]
officials on the
highest policymaking levels such as cabinet
members or other immediate advisors of such
elected
officials ... This
exemption
is
intended to be construed very narrowly and
is in no way intended to establish an
overall narrowing of the expanded coverage
of State and local governmental employees as
set forth in section 70l(a) and (b) above.
SECTION-BY-SECTION ANALYSIS
added).

OF

H.R. 1746,

s.

REP.

681,

at 2

(emphasis

This well-documented congressional intent has also been

repeatedly echoed by the EEOC.

See, e.g., EEOC Decision No. 78-

42,

Decision

September

29,

1978;

EEOC

No.

79-8,

October

20,

includes

all

1978.
The

Seventh

Circuit's

view

those who have meaningful input,

23

that

this

level

"directly or indirectly," into

government
example,

decision

making

is

so

broad

as

to

include,

for

probation officers; 8 heal th inspectors; 9 and any staff

member who provides
ultimately

finds

research

its

writes

a

in

way,

or

whole

or

government's decisional process.

position paper
in

part,

In any government,

that

into

a

that could

include hundreds of appointees, thereby broadening the exception
so much as to render the EPA's applicability to state and local
government employers of little efficacy, thereby frustrating the
intent of Congress.
Second,

the

Elrod-Branti

analysis

used

by

the

Seventh

Circuit can be transposed only imperfectly onto the framework of
the

policymaking

level

exception.

Although

the

two

doctrines

stem from similar concerns, and the analyses may often overlap,
they are not interchangeable because the purpose of the ElrodBranti exception is fundamentally different than the purpose of
the

statutory exception.

The

Elrod-Branti exception

rests

on

the recognition that there are some governmental positions for
which

political

ideology

is

a

relevant

job

requirement,

and

attempts to balance that recognition against the constitutional
right of association.
other

hand,

O'Reilly v.
24, 2003).

8

9

reflects
Newman,

The policymaking level exclusion, on the
Congress'

recognition

2003 WL 23101795,

that

at *10

state
(S.D.

Ind.

Heck v. City of Freeport, 985 F.2d 305 (7th Cir. 1993).
24

leaders
Feb.

ought

to

be

free

to

choose

their

top

level

advisors

without

judicial interruption. 10
To

understand

that

distinction,

it

is

necessary

here

to

pause and examine the Elrod-Branti doctrine that serves as the
predicate for the Seventh Circuit's approach to interpreting the
"policymaking

level"

doctrine

the

was

patronage has
system,

exception.

Supreme

long been a

and therefore,

requirement

for

The

Court's

seed of

the

recognition

prominent

feature

Elrod-Branti

that

political

of our democratic

"party affiliation may be an acceptable

some types of government employment."

Branti,

445 U.S. at 517.
In

the

plurality

that citizens'
"limiting

opinion

in

Elrod,

the

Court

found

that

interest in political freedom was best served by

patronage

Elrod,

427 U.S.

clear

definition

dismissals

at 372.
of

to

policymaking

positions."

The plurality struggled to provide a

"policymaking

positions,"

but

noted

that

"[a] n employee with responsibilities that are not well defined
or are of broad scope more likely functions
position."
Four
decidedly

in a

policymaking

Id. at 368.
years

later,

modified

however,

course

in

the
Branti.

10

Supreme

Court

The Elrod

charted

a

plurality,

It is also worth noting that Congress could not have meant to
incorporate the rule in Elrod and Branti, decided in 1976 and
1980, respectively, into the policymaking level exception, which
was added to Title VII in 1972.
25

joined by

Justice

reaffirming
and the

the

Stevens

ultimate

concurrence

in

and

Chief

concern

Justice

animating

the previous

Burger,

both

the

"if an

case:

began

by

plurality
employee's

private political beliefs would interfere with the discharge of
his public duties, his First Amendment rights may be required to
yield to the State's vital interest in maintaining governmental
efficiency and effectiveness."

Branti,

445 U.S.

at

The

517.

Court then clarified that the key inquiry in political patronage
First

Amendment

'policymaker'

or

cases

is

not

'confidential'

simply
fits

a

"whether

the

label

particular person," but

rather, "whether the hiring authority can demonstrate that party
affiliation

is

an

appropriate

requirement

performance of the public office involved."
By way of example,
election

laws

require

that

precincts

legitimately

registration."

discharged
Id.

solely

be
a

for

the

effective

Id. at 518.

the Court observed that,

election judges of different parties,
be

for

"if a State's

supervised

by

two

Republican judge could
changing

his

party

On the other hand, "the Governor of a State

may appropriately believe

that

the

official

duties

of various

assistants who help him write speeches, explain his views to the
press,

or communicate with the

legislature cannot be performed

effectively unless those persons share his political beliefs and
party commitments."
"[u] nder

some

Id.

Accordingly, the Court cautioned that,

circumstances,

a
26

position

may

be

appropriately

considered political even though it is neither confidential nor
policymaking in character."

Id.

The Fourth Circuit has distilled the holding in Branti into
a two-part test:
into

whether

first,

"the

influencing

or

courts must make a "threshold inquiry"

position

at

issue,

confidential

it

may

political interests ... [or]

807

cert. denied,
519)).

F.2d

481 U.S.

If this

"examine
determine

the

first

236,

whether

it

holder

whose

function

(1st

(1987)

Stott v.

Cir.

satisfied,

responsibilities

resembles

is

relates

how
to

policy'partisan

Haworth,

a

that

equally appropriate requirement."
With this background in mind,
"policymaking level" exception is

(en

916

of

bane),

445 U.S. at

courts must
the

policymaker,

a communicator,
such

1986)

(quoting Branti,

inquiry is

confidential information,

matter

(quoting Jiminez Fuentes v. Torres

241-42

1014

particular

be,

concerns. '" 11

F.2d 134, 141 (4th Cir. 1990)
Gaztambide,

no

then

position

to

a

to

privy

or some other office

party

affiliation

is

an

Id. at 142.
it is easy to see that the
founded on some of the

concerns as the Elrod-Branti line of cases:

same

elected officials,

in working to achieve their policy goals, are "likely to prefer
Herring has not argued that Reardon's position as an AAG III
"relates to partisan political interests."
And, there are no
allegations in the Complaint from which the Court could infer
that that is so.
Thus, even if Stott supplied the applicable
test here (which it does not), Herring has not demonstrated that
Reardon fits within the Elrod-Branti exception as a matter of
law.
11

27

individuals

with

similar

EEOC Decision No.
Branti

and

political

78-42,

evince

ideological

outlooks."

an

1978.

Accordingly, both

intent

September 29,

203 (e) (2) (C)

§

and

"to allow elected

officials the freedom to appoint those with whom they feel they
can work best."

It is no surprise, then,

Id.

that courts may

frequently--but not always--reach the same result concerning the
plaintiff's

entitlement

protection,

as

the

to

case

either

may

statutory

be,

under

or

the

constitutional

Eighth

Circuit's

"policymaking level" test and the Elrod-Branti test.
Importantly, however, the Supreme Court's holding in Branti
makes

clear

that

necessarily

broader

"policymaker"
policymaking
Court

the

or

than
even

level."

explicitly

patronage

inquiry

whether
whether

445

U.S.

rejected

analysis

in political patronage

the

a

position

the
at

is

position

that

position

that

the

the

is

of

"on

is

Indeed,

518.

cases

a
the

Supreme

political

could be simplified in that manner.

As

a

result, in conducting the Elrod-Branti analysis, courts need not
make

fine

distinctions

"personal staff";
any of those
Amendment
exemption,
position
regardless

in fact,

a plaintiff who fails

categories may nonetheless

protection
a

between "policymakers," "advisers," and

under

defendant

"potentially
of

"the

need

Branti
only

implicate[s]

exempt

from

to

trigger

because,
prove

that

political

appropriateness
28

be

of

to fall

the

into
First
the

plaintiff's

considerations,"

semantic

labels."

Vanterpool v.
2014) .

Cuccinelli,

998

F.

Supp.

2d 451,

462

(E.D.

Va.

As the examples given by the Supreme Court effectively

demonstrate,

a

position

that

is

subject

to

dismissal

on

the

basis of political affiliation under the Elrod-Branti doctrine
may, or may not,

fit into any of the statutory exceptions found

in§ 203(e) (2) (C) (ii) and its Title VII or ADEA counterparts.
By contrast,
added
above,

the

the legislative history of the amendment that

policymaking

makes

exception

abundantly

clear

to
that

Title

VII,

Congress

see

Part

B. 3

intended

the

policymaking level exception to be very narrowly construed.

In

sum, as the United States Court of Appeals for the First Circuit
has explained,
the narrow construction mentioned by the
conferees ... is clearly intended to limit the
reach of the exception down the chain of
command, and not so much across agencies or
departments.
This is evident from the very
language of the conferees, who placed no
restrictions on the number of agencies or
departments
covered,
but
limited
the
positions covered to those at the highest
levels.
E.E.O.C. v. Massachusetts, 858 F.2d at 56.
Accordingly,
demand

that

the

courts

"broad

remedial

determine

with

purposes"
precision

statutory exception into which an appointee falls.

of
the

the

FLSA

specific

Thus,

it is

important to recognize that the set of government officials who
are appointees "on a policymaking level" contains only a small

29

cross-section of

the

larger group of government

employees

for

whom political affiliation may be a suitable job requirement.
Third,
recognize

and
this

contradict

relatedly,

the

Seventh

distinction

has

led

the holdings

of the

Circuit's

to

results

failure

that

political patronage

directly

cases

which it draws to interpret that "employee" exception.
Eleventh
recognize

Circuit
this

put

it,

crucial

the

Seventh

distinction

afield from Branti" that "appear []
the

facts

1353,

of Bran ti

1358

n. 4

itself."

(11th

Cir.

Circuit's

"has

led

to

upon

As the

failure
results

to
far

to lie in sharp contrast to

Cutcliffe v.
1997).

One

Cochran,

117

commentator

summarized this problem:
The
disconnect
is
manifest:
the Elrod
plurality declined to deem a chief deputy
sheriff
a
policymaker
in
a
political
discrimination claim [as have the Third,
Fourth, Fifth, and Tenth Circuits].
Yet the
Seventh Circuit has twice applied Elrod to
reach the opposite conclusion in political
patronage cases:
holding as a matter of law
that deputy sheriffs were policymakers and
thus unprotected.
The Circuit's reasoning
that patronage caselaw directs its statutory
construction is especially awkward given the
U.S.
Supreme
Court's
direction
against
reliance on a strict "policymaking" label in
patronage cases ... Notably, Branti dissenters
lamented
their
prediction
that
the
majority's holding would mean that assistant
government attorneys would not be exempt
from the patronage ban.
Yet the Seventh
Circuit recently relied on its reading of
Elrod and Branti to justify deeming all
Illinois
assistant
attorneys
as
policymaking-level appointees, and therefore
30

to

F. 3d
aptly

excluded from workers'
rights protections
[in Opp v. Office of State's Attorney of
Cook Cty.,
630 F.3d 616,
621
(7th Cir.
2010)].
Angela Galloway,
Courts

Have

Comment,

A "Narrow Exception" Run Amok:

Misconstrued

"Policymaking Appointees,
Back on Track,

86

Employee-Rights
and a
L.

WASH.

Laws'

How

Exclusion

of

Proposed Framework for Getting

REV.

875,

895-96

(2011)

(footnotes

omitted).
For
approach,

the

foregoing

which

government

reasons,

categorically

employees

discrimination laws,

from

the

exempts
the

Seventh
hundreds

protections

Circuit's

broad

of

lower-level

of

employment

is at odds with the statutory text of the

employee exception and is contrary to clear and well-documented
congressional
the

highest

departments.

intent to

limit

policymaking
Moreover,

this

exception to employees

levels"

of

their

declines

to

respective

that approach diverges sharply from the

very cases on which it purports to be based. 12
Court

"at

follow

the

approach

Therefore,

adopted by the

the

Seventh

Circuit and urged by Herring.
The Court does not mean to imply that the Elrod-Branti
doctrine, as set forth by the Fourth Circuit in Stott, should be
categorically ignored in determining whether an appointee is "on
the policymaking level."
The parallels between these analyses
mean that, in some cases, jurisprudence interpreting Elrod,
Branti, and Stott may be instructive.
The Court emphasizes the
distinctions between the two doctrines only to demonstrate why
the Elrod-Branti test cannot be universally substituted for an
analysis properly derived from the language and intent of the
statutory exception at issue in this case.
12

31

ii.

The Problem With The Second/Ten th Circuits'
Approach

The narrower construction, urged by Reardon and employed by
the Second Circuit,

is also problematic.

The Second Circuit's

focus on the relationship between the appointee and the elected
official conflates the distinction between an elected official's
"personal staff" or "immediate advisers" on the one hand, and on
the

other,

"appointees

rendering

those

exception

is

exemptions

thus

"at

so that effect is
will

policymaking

redundant.

that

with
'[a]

be

one

reading

of

the

basic

of

the

most

should be constructed
so that no

superfluous,

or

United

(quoting Hibbs v. Winn,

of

thereby

of its provisions,

inoperative
Corley v.

level,"

This

statute

given to all

insignificant.'"
(2009)

the

odds

interpretative canons,

part

on

States,

542 U.S.

void

55 6 U.S.

or

303,

88, 101 (2004)

314

(internal

quotation marks omitted)).
This

redundancy

application
sociis,

which

company it
261

of

U.S.

"policymaking
that

"the

i.e.,

the

another
reminds

keeps [ . ] "

514,

is

519

direct

canon
us.

of

that

result

(1923).

"a

and

the

In
Second

third

elected official's

word

may

arriving

at

Circuit

the

be
v.

[of

personal

staff

erroneous
noscitur

known

by

a
the

United States,

its

def ini ti on

focused

categories

32

of

interpretation,

Russell Motor Car Co.

level,"

first

a

exempt

on

the

of

fact

employees] ,

and his

immediate

advisors,

refer

elected official,
was

intended to

to

who

would

work

closely

with

share basic characteristics

surrounded it."

794,

798

E.E.O.C.

v.

of the

categories

State of Vermont,

(2d Cir. 1990), overruled in part by Gregory,

(1991).

904

F.2d

501 U.S.

However, as Justice White persuasively noted in his

partial concurrence in Gregory, this reasoning is flawed:
Petitioners argue that the "appointee [ s] on
the policymaking level" exception should be
construed to apply "only to persons who
advise or work closely with the elected
official that chose the appointee." ... In
support of that claim, petitioners point out
that the exception is "sandwiched" between
the "personal staff" and "immediate adviser"
exceptions in § 630 (f) [of the ADEA], and
thus should be read as covering only similar
employees.
Petitioners'
premise,
however,
does
not
prove their conclusion.
It is true that the
placement
of
the
"appointee"
exception
between the "personal staff" and "immediate
adviser" exceptions suggests a similarity
among the three.
But the most obvious
similarity is simply that each of the three
sets of employees are connected in some way
with elected officials:
The first and third
sets have a certain working relationship
with elected officials, while the second is
appointed by elected officials.
There is no
textual support for concluding that the
second set must also have a close working
relationship
with
elected
officials.
Indeed, such a reading would tend to make
the "appointee" exception superfluous since
the "personal staff" and "immediate adviser"
exceptions
would
seem
to
cover
most
appointees who are
in a
close working
relationship with elected officials.
33

i~-~

the

and we would infer that the middle category

that

452

persons

Gregory,

501· U.S.

concurring

in

Accordingly

and

at

the
for

483

(White,

judgment).
the

concurring

J.,

That

reasons

set

logic
forth

in

is

part

and

persuasive.

above,

the

Court

declines to adopt the construction urged by Reardon.
c. Application of the Eighth Circuit Standard

Having

determined

that

the

Eighth

Circuit's

approach

supplies the applicable guidance, it is now necessary to examine
whether

Reardon' s

position,

AAG

III

in

the

Major

Crimes

and

Emerging Threats section of the OAG, was one that was "entrusted
with

extensive

power[.]"

than

[appointee]
and

(3)

authority

Gregory, 898 F.2d at 603.

by examining:
rather

decisionmaking

"(1)
solely

whether the

[appointee]

administrative

discretionary

This determination is made

powers,

has discretionary,
(2)

whether

the

serves at the pleasure of the appointing authority,

whether the

[appointee]

formulates policy."

(quoting Stillians,
is

and not

exhaustive,

every case.

all

of

the

Id. at 604

This list of factors

843 F.2d at 278-79).

not

and

factors

will

apply

in

Id.

Herring's argument is that Reardon's description of an AAG
III's

duties

as

alleged

pleads her out of court.

in

the

Complaint

(~~

62(a)-(i),

63)

It is true that those paragraphs can

be construed as imbuing the AAG IIIs in Reardon's section with
substantial responsibilities.

Those paragraphs also create the

34

impression that Reardon had some measure of discretion in the
discharge of her duties.
prosecuting
issues,

cases,

answering

agencies,

But the tasks of investigating crimes,

advising
questions

administrative
from

citizens

reviewing pending legislation,

to the Attorney General,

agencies
and

law

on

legal

enforcement

making recommendations

and drafting opinions do not per force

plead that an AAG III has "extensive decisionmaking authority."
To

the

contrary,

it

is

reasonable

position,

though

somewhat

Complaint,

is

of

that

a

to

infer

attorney

Reardon's
in

with

little,

the

if

described

expansively

line

that

any,

discretionary powers involving the formulation or implementation
of policy.
To

be

sure,

the

giving

legal

of

advice

involves

decisionmaking about what the law is and what it allows and does
not allow or require.

And, being a lawyer involves considerable

discretion in how to investigate and try cases.
the

sort

envisioned

of

decisionmaking

by

the

power

"employee"

or

But that is not

discretion

exception.

that

Moreover,

is
the

description of Reardon's role pleaded in the Complaint does not
permit

the

inference

that

she

formulated

policy

while

discharging the duties therein described.
Ultimately,

however,

the

question

is

not

whether

Reardon

herself formulated policy, but whether the "responsibilities and
powers inherent in [her] position" as AAG III satisfy the Eighth
35

Circuit's standard.
the allegations

Kelley,

542

F.3d at 810.

On that score,

in the Complaint lead to the inference that a

somewhat complex hierarchy exists within the OAG,
AAGs

may

be

Accordingly,
issues

"on

the

policymaking

level"

the Complaint implicates

that

must

be

developed

and

and that some
some

may

not.

the existence of factual

in

discovery

as

to

the

applicability of the policymaking level exception.
Therefore,

at

this

stage of

litigation,

the

Court

cannot

determine whether Reardon was an appointee "on the policymaking
level" as a matter of law.
and responsibilities of
and

regulations"

so

This is not a case where "the duties

[an AAG III]

that

the

are clearly defined by law

Court

"may

without the aid of a finder of fact."
at 97 2.

resolve

this

issue

Vargas-Harrison, 272 F.3d

Herring has cited no statute, regulation, ordinance, or

evidence clearly indicating that an AAG III such as Reardon is
or is not "entrusted with extensive decisionmaking authority and
discretionary power[.]"
In

sum,

qualifies

as

it

is

an

simply

"employee"

too

early

for

to

purposes

tell
of

whether
the

Reardon

EPA.

That

determination is fact-intensive and better suited to resolution
after

the

parties

have

conducted

discovery.

Therefore,

the

motion to dismiss will be denied to the extent that it is based
on the exception set out in 29 U.S.C.

36

§

203(e) (2) (C) (ii) (III).

C. Reardon Has Adequately
under the EPA.

In Count I
paid

less

Stated

of the Complaint,

than

her

male

a

Claim

for

Discrimination

Reardon alleges that she was

counterparts,

constituting

wage

discrimination on the basis of sex in violation of the EPA,

u.s.c.
case

§

of

206(d) . 13
sex

(Compl.

discrimination

plausibly allege:

" ( 1)

wages

of

to

<]{<]{

employees

that

69-77) .

under
her

opposite

13

(3)

that

29 U.S.C.

§

such

jobs

are

To successfully plead a
EPA,

employer

sexes;

hold jobs that require equal skill,
and

the

( 2)

effort,

performed

a

plaintiff

has

must

paid different

that

the

employees

and responsibility;

under

similar

206(d) provides that:

No employer having employees subject to any
provisions of [the FLSA] shall discriminate,
within
any
establishment
in which
such
employees are employed, between employees on
the
basis
of
sex
by paying
wages
to
employees in such establishment at a rate
less than the rate at which he pays wages to
employees
of the
opposite
sex
in such
establishment for equal work on jobs the
performance of which requires equal skill,
effort, and responsibility, and which are
performed under similar working conditions,
except where such payment is made pursuant
to ( i) a seniority system;
(ii) a merit
system;
(iii)
a
system
which
measures
earnings
by
quantity
or
quality
of
production; or (iv) a differential based on
any other factor other . than sex:
Provided,
that an employer who is paying a wage rate
differential in violation of this subsection
shall not,
in order to comply with the
provisions of this subsection, reduce the
wage rate of any employee.
37

29

working

conditions.

Maron v. Virginia Polytechnic Inst. & State Univ.,

11

508 F. App'x 226, 232 (2013).
Herring
plead

the

contends

second

that

element

the
of

Complaint

Count

I

does

because

not

adequately

Reardon

has

not

adequately alleged that her male comparators held jobs requiring
"equal skill,
16) .

effort,

Herring finds

and responsibility.
particular fault

"devoid of any factual
performance,

and

comparators. 11
necessitates

at

of

with

all

the

at 15-

because the Complaint is

jobs

That

15.

dismissal.

interpreted,

Mem.

allegations regarding the requirements,

content
Id.

(Def.

/1

the

in

male

Herring,
fairly

Complaint,

the

drawn

alleged
says

failure,

However,
inferences

of

Reardon's

favor,

disproves Herring's argument.
Reardon has

alleged that

she was

paid substantially less
(Compl.

than each of the five male AAG IIIs in her section.
53-58) .

From the allegations

in the Complaint,

<JI<JI

it reasonably

can be inferred that Reardon and the identified male attorneys
perform

their

Reardon

and

jobs

under

similar

working
attorneys

conditions
work

that

the

same

the

identified

male

department.

Id.

Therefore,

the Court need decide only whether

Reardon has

adequately alleged that

her male

in

in

comparators

jobs requiring "equal skill, effort, and responsibility. 11

38

held

Although
effort,

and

206 (d)

§

speaks

responsibility"

of

jobs

requiring "equal

(emphasis

added),

"application

the Equal Pay Act is not restricted to identical work."
Norfolk State Univ.,
2014)
282,

2014 WL 2916718,

(citing Brennan v.
291

(4th

Cir.

finding

on

compared

the

Brennan,

equal

have

a

Rather,

work

'common

issue

F.2d at

991

core'

156

core'

tasks,"

differing

(3d Cir.

or

titles ... are
performance
sum,

Id.
not
are

tasks

then

Importantly,

the

work

503

a

Int' 1,

761

'"common

whether

the

substantially
and

requirements

job

Brennan,

controlling."

be

descriptions

" [ j ] ob

Actual

decisive.

be

Brewster,

jobs share a
to

to

whether

Servs.

turns

make

only

jobs

i.e.,

Columbus

F.2d

"The crucial

identical."

If the

"inquiry

additional

different."

is

503

need

the

tasks,

jobs

1985)).

the

jobs

whether

of

(quoting Brobst v.

F.2d 148,
of

is

June 26,

Corp.,

503 F.2d at 290.

significant portion of the two
788

the

of

Earl v.

(E.D. Va.

Prince William Hosp.

1974)).

"substantially equal."

at *15

skill,

and

F.2d at

288.

In

the plaintiff must "show that the comparison she is making

is an appropriate one."

Strag v. Bd. of Trustees,

55 F.3d 943,

950 (4th Cir. 1995).
The

requisite

illustrated
example,

by

specificity

several

for

recent

this

cases

in

element
this

of

an

district.

EPA is
For

the Court has previously allowed an action to proceed,

over a Rule 12 (b) ( 6)

challenge,
39

where the plaintiff,

a college

professor, alleged that he and his comparators taught "the same"
or

"fungible"

courses,

and

there

was

no

indication

to

the

contrary, the EPA claim was allowed to proceed.

Earl v. Norfolk

State Univ.,

June 26,

Earlier

2014 WL 2916718,

this

year,

in

at *4

Taylor

v.

(E.D.

Va.

Millennium

Corp.,

2014).

the

Court

denied a motion to dismiss an EPA discrimination claim because
the plaintiff had "allege[d] that she performed similar work to
[her comparator]
effort,

and

alleged

that

and that their

responsibility,"
she

and

her

jobs required the same skill,

even

though

comparators

the

Complaint

"reported

to

also

different

supervisors and that they supervised different employees."
WL 927185,

at *10

(E.D.

Va.

that the motion to dismiss
whether

the

Mar.

4,

of

responsibilities

comparators were adequately equal.
Court

held

that

a

plaintiff

had

The Court decided

2016).

stage "[was]

too soon to rule on"

the

Id.

2016

plaintiff

her

and

Even more recently, the

satisfied

this

element

by

pleading "that the people who have the same job title as him,
who

work

in

the

qualifications,

and

same
who

differently than he is."

department,
do

the

same

who
work

have
as

him

the
are

Hinton v. Virginia Union Univ.,

same
paid
-- F.

Supp. 3d --, 2016 WL 2621967, at *26 (E.D. Va. May 4, 2016); see
also Merchant v. Prince George's Cty., 2010 WL 503046, at *5 (D.
Md. Feb. 9, 2010) .

40

Those
plaintiff

decisions
alleges

substantially

demonstrate

that

similar

the
work,

that

opposite

sex

received

where,

as

here,

comparators

identical

a

performed

classification,

and had comparable work experience, the complaint has adequately
alleged the
EPA.

second element of a

In

the

comparators,
at the OAG,
57).

Reardon

identifies

Major Crimes and Emerging Threats.

(Compl.

'JI'JI 52-

At least two of Reardon's male comparators were also based

of

Id.

years

'JI'JI 55,
of

bar

57.

to the Virginia

The Complaint also sets forth the

experience

ranging from 13 to 21 years.

for

each

Id. 'JI'JI 53-57.

State Bar in 198 4,

male

comparator,

Reardon,

admitted

has bar experience greater

than or equal to each of the male comparators identified.
18. 14

male

five

all of whom were A.AG IIIs within Reardon's section

in Richmond.
number

Complaint,

discrimination claim under the

Reardon

also

alleges

that

attorney

Id. 'JI

classification

and

Herring repeatedly contends that Reardon did not possess the
same skills as her male comparators because, "despite being
admitted to the bar in 1984, at the time her employment was
terminated, Plaintiff had only actively practiced law for twelve
and one half ( 12. 5) years [, and] the alleged male comparators
identified by Plaintiff had at least thirteen (13) years of
experience."
(Def. Mem. at 16).
Although Reardon admits in the
Complaint that she practiced law only from 1984 to 1988 and from
April 2006 to the present, the Complaint contains no allegations
concerning the number of years the other A.AG II Is in Reardon' s
section had actually practiced law.
Rather, the Complaint
contends only that Reardon had been admitted to the bar for at
least as many years as each of her male comparators.
Therefore,
at this early stage, the Court declines to consider Herring's
14

41

salary within the OAG depends heavily on attorneys' years of bar
experience.

Finally,

Id. 'JI 24-25.

the male attorneys in Reardon' s
performed

similar

work.

Id.

the Complaint alleges that

section had similar duties and
'JI'JI

63,

These

71.

allegations

satisfy the second element of the EPA claim raised in Count I.
The

authority

Citing Wheatley v.

cited

by

Herring

Wicomico Cty.,

does

not

Maryland,

show

390

otherwise.

F. 3d 328

(4th

Cir. 2004), Herring argues that plaintiffs must provide detailed
facts

concerning

comparators'

tasks

and

responsibilities.

However, Wheatley was decided on a complete factual record,

and

the

for

case

was

before

the

Court

of

Appeals

on

a

motion

judgment as a matter of law, not a motion to dismiss.

In fact,

every case cited in Herring's brief in support of the motion to
dismiss Count I was decided after discovery had been completed,
either on summary judgment or at a jury trial.

The higher level

of factual specificity demanded of the plaintiffs in those cases
is

the

sort

discovery.

of

detail

most

appropriately

developed

through

Requiring such comprehensive factual detail at this

stage would be contrary to Fed. R. Civ. P. S's requirement of "a
short and plain statement of the claim showing that the pleader
is

entitled to

only

that

the

relief."
plaintiff

Similarly,
plead

facts

Twombly and Iqbal
sufficient

to

require

support

an

argument
concerning
Reardon' s
male
comparators'
years
of
practice experience, as opposed to "bar experience," because
that argument relies on facts beyond the scope of the Complaint.
42

inference that the plaintiff's claim to relief is plausible to
justify unlocking the doors of discovery.
For the foregoing reasons,

the allegations in the Complaint

are sufficient to infer that Reardon and the male attorneys in
her

section

had

responsibilities.

"substantially

Reardon

has

pled

equal"

duties

sufficient

facts

and

to merit

allowing the parties to gather concrete evidence on the relevant
aspects of the employees' positions.

Accordingly, the motion to

dismiss will be denied as to Count I.
D. Reardon Has Not Stated a Retaliation Claim under the EPA.

The EPA,
is

unlawful

against

as incorporated into the FLSA, 15 provides that it
"to discharge

an

employee

complaint

or

proceeding

under

215 (a) (3).

Thus,

must

plausibly

activity,

(2)

such

or

related

employee

caused
to

this

to

be

has

filed

any

instituted

any

chapter ... "

29

to state a claim for retaliation,
allege

"(1)

that:

'materially

have dissuaded a

in any other manner discriminate

because

instituted
or

or

adverse

engagement

U.S. C.

§

a plaintiff

in

protected

action ... which ... might

well

reasonable worker from making or supporting a

charge of discrimination,' and (3) causality." 16

Hinton, 2016 WL

O'Neill v. Allendale Mut. Ins. Co., 956 F. Supp. 661, 665 n.8
(E.D. Va. 1997) (noting that the "Equal Pay Act ... directly
incorporates § 215 (a) (3) of the FLSA. ").

15

16

To establish a claim for retaliation
plaintiff may offer direct evidence that
43

under the FLSA, a
she was retaliated

2621967, at *17

(quoting Burlington N. & Santa Fe Rwy. v. White,

548 U.S. 53, 68

(2006)); Darveau v. Detecon, Inc., 515 F.3d 334,

340 (4th Cir. 2008).
Herring concedes for purposes of this motion that Reardon's
termination

constituted

qualifying

adverse

action,

but

he

contends that she has not adequately alleged either the first or
third

elements

of

an

EPA

claim.

(Def.

Mem.

at

17-22).

Therefore, the Court addresses each of those elements in turn.
1. Reardon Adequately Alleged that She Engaged in Protected
Activity

Herring first contends that Reardon has not alleged that she
engaged in

protected activity because

Ms. Bryant, Mr.
was

being

Jagels,

violated,

Reardon

never

or anyone else that she thought the EPA
or

that

she

believed

she

discriminated against on the basis of her gender."
at

20) .

Therefore,

"informed

says

Herring,

was

being

(Def. Mem.

"Plaintiff's

alleged

complaints failed to provide ... fair notice that she believed she
was being discriminated against under the EPA."

Id.

Thus,

it

is necessary to determine whether Reardon's alleged discussions

against because she engaged in protected activity, or apply the
"burdenshifting"
scheme
initially articulated
in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which requires
that a plaintiff plead a prima facie case.
Hackney v. Arlington
Cty. Police Dept., 145 F.3d 1324, 1998 WL 230849, at *4 (4th
Cir. May 11, 1998).
Because Reardon has alleged no facts that
would permit a finding that she has pled a "direct" case, she
must plead each of the elements of a prima facie case, as set
forth herein.
44

with her supervisors concerning the disparity between her salary
and her male coworkers'

salaries constitute "protected activity"

within the meaning of 29 U.S.C.

215(a) (3).

§

As Reardon correctly points out, an intracompany complaint,
either written or oral, may suffice to satisfy this requirement.
Minor

v.

Bostwick

2012).

Moreover,

Labs.,

Inc.,

contrary

to

669

F.3d

Herring's

428,

438

premise,

(4th
an

Cir.

employee

need not invoke the statute by name or "employ any magic words,
such as
of

'discrimination,'

unlawful

the

for

discrimination ... may

surrounding facts."

Supp.

2d

'the communication of a complaint

1,

13

be

inf erred or

Mazloum v.

(D.D.C.

2006)

Dist.

implied'

of Columbia,

(internal

citations

from

442

F.

omitted,

emphasis in original).
On the other hand,

an employee simply "letting off steam"

does not constitute protected activity.

Kasten v.

Performance Plastics Corp.,

14

563 U.S.

1,

(2011).

Saint-Gobain
Therefore,

"some degree of formality" is required for an employee complaint
to constitute protected activity,

"certainly to the point where

the recipient has been given fair notice that a grievance has
been

lodged

and

does,

or

should,

reasonably

matter as part of its business concerns."
"to fall
complaint

within the
must

be

Id.

understand

that

In other words,

scope of the

antiretaliation provision,

a

sufficiently

clear

a

reasonable employer to understand it,
45

and

detailed

for

in light of both content

and context,

as an assertion of rights protected by the statute

and a call for their protection."
Reardon's

Complaint

alleges

that,

in

Jagels,

employed

section

at

the

satisfies

"late
by

OAG,

Id.

Plaintiff

2014,

the

that

OAG

as

and Mr.

a

standard.
complained

supervisor

Dorgan

of

[Reardon' s

Reardon
to

Michael

Plaintiff's

section

chief]

about being paid below the matrix guidelines and/or other male
attorneys at the OAG."
again

complained

(Compl.

numerous

<JI

times

39) .
to Mr.

In "early 2015, Reardon
Jagels

and Ms.

Bryant

about being paid below the matrix guidelines and/or other male
attorneys

at

complaints,

the

OAG."

Reardon' s

Id.

salary

<JI

42.

continued

Notwithstanding
to

lag

salaries of the male attorneys in her section.

far
Id.

these

behind
<JI<JI

the

52-58.

In sum, Reardon "repeatedly complained to her supervisors at the
OAG that she was paid less than male attorneys at the OAG."
<JI

Id.

7 9.

Construing these allegations in the light most favorable to
Reardon,

the facts alleged permit the inference that Herring was

on notice of Reardon' s belief that the discrepancy between her
salary and her male coworkers'
Reardon' s

allegations

that

salaries was because of her sex.

she

complained

of

being

paid

less

than her male coworkers satisfy the pleading threshold required
for the first element of an EPA claim for retaliation under the

46

EPA. 17
1006,

See,
1011

e.g.,
(11th

E.E.O.C.
Cir.

v.

1989)

White

&

Son Enters.,

(plaintiffs

element when they had complained to

supervisors

F.2d

satisfied

had

881

this

about

unequal

pay and asked for a raise equivalent to a raise received by male
employee); Prosser v. Thiele Kaolin Co., -- F. Supp. 3d --, 2015
WL

5769233,

at

satisfied this
than

the

guys'

*11

Ga.

(M. D.

Sept.

element by complaining that
is,'"

'equal pay act'

or

Alle-Kiski Med.

Ctr.,

even

though

she

2015)

30,

"her

"did not

(plaintiff

'pay is
use

the

lower
words

'gender-based wage differential'"); Wildi v.
659 F.

Supp.

2d 640,

664

(W.D.

Pa.

2009)

(denying defendant's motion for summary judgment where employee
"expressed to [her employer] her belief that there was an unfair
wage

disparity,

specifically

and ... testified

complained

that

one

at

her
of

the

deposition

that

she

problems

with

the

disparity was that all her counterparts were male.").

The Court agrees with Herring that, standing alone, Reardon's
alleged complaints to her supervisors in 2011 and "early 2014"
(Compl. ~~ 29, 36-37) that her salary was below the matrix
guidelines fail to qualify as protected activity under the EPA
because there is no indication that Reardon's complaints at
those times raised the issue of the correlation between salary
discrepancy and gender.
However, those facts, if proved, may
help provide context for the later allegations of gender-biased
discrimination.
And, discovery may supply further context for
these allegations.
17

47

2. Reardon Has Not Sufficiently Stated a Causal Link

Next,

the

analysis

proceeds

to

whether

Reardon

has

adequately alleged a causal connection between her complaints in
"late

2014"

and "early 2015"

and her

2015.

As explained below, she has not.
To state a claim for retaliation,

causal

link

action. 18

between

the

protected

termination

on

June

15,

a plaintiff must plead a

activity

and

the

adverse

A "causal link" requires that the employer knew of the

protected activity and that "either the retaliation must closely
follow the protected activity or the plaintiff must put forth a
sufficient

explanation

for

the

time

elapsed

between

the

protected activity and the alleged retaliation."

Hinton,

2016

WL 2621967, at *23.

The Supreme Court has held that Title VII retaliation claims
"must be proved according to traditional principles of but-for
causation ... [which] requires proof that the unlawful retaliation
would not have occurred in the absence of the alleged wrongful
action or actions of the employer."
Univ. of Texas Sw. Med.
Ctr. v. Nassar, -- U.S. --, 133 S. Ct. 2517, 2533 (2013).
The
Fourth Circuit has not yet spoken on the application of Nassar
to retaliation claims brought under the EPA or the FLSA.
However, as a sister district court has noted, regardless of
whether the plaintiff must ultimately prove but-for causation at
trial, at the motion to dismiss stage, a plaintiff faces a "less
onerous burden" of alleging a prima facie case of causality.
Martinez v. K & S Mgmt. Servs., 2016 WL 808797, at *8 (D. Md.
Mar. 2, 2016) (internal citation omitted).
Therefore, the Court
need not determine whether the rule announced in Nassar applies
to Reardon's retaliation claim.
18

48

Where causation is based on temporal proximity alone,

the

retaliatory action must be "very close" in time to the protected
activity to support a prima f acie case.
v. Breeden, 532 U.S. 268, 273
20

months

suggest

after

the

causality,

insufficient).

(2001)

protected

and

Clark Cty.

Dist.

(stating that actions taken

activity

noting

Sch.

that

do

3-4

not,

months

without more,
has

been

found

Although there is no "bright temporal line," the

Fourth Circuit has held that a period of three to four months
between the protected activity and the adverse employment action
is too long to establish causation by temporal proximity alone,
and

"[e] ven

a

mere

ten-week

activity and termination
significantly
events.'"
2012)

the

separation

Kappos,

of
489

(quoting King v. Rumsfeld,

2003)).

protected

causation
F.

App'x

between
637,

the
(4th

643

328 F.3d 145, 151 n.5

two
Cir.

(4th Cir.

Al though King accurately reflects the Fourth Circuit's

skepticism

of

causal

connection

where

lacking,
lengthy

passage

of

suffice

to

a

temporal

other decisions have held that,

Inc.,

the

'is sufficiently long so as to weaken

inference

Perry v.

between

478

show

F.3d 640,

time,
causal
650

other

(4th Cir.

F.3d 795, 803 (4th Cir. 1998).

49

is

even in the face of a

evidence

connection.

proximity

of

retaliation

See Lettieri

2007);

Causey v.

v.

may

Equant

Balog,

162

In the absence of temporal proximity, courts
consider
other
circumstances
when
determining if a plaintiff has pled a prima
f acie case.
Most frequently, courts look to
ongoing retaliatory animus or intervening
antagonism during the period between the
protected activity and the adverse action in
order to find a causal connection where
there
is
a
lack
of
temporal
proximity ... These
cases
tend
to
involve
regular acts showing animus or antagonism,
coupled with valid reasons why the adverse
action was not taken immediately.
For
example,
in Lettieri, the Fourth Circuit
found
a
causal
connection
where
the
defendants
discussed
ways
to
fire
the
plaintiff and stripped her of a significant
portion of her job responsibilities shortly
after she filed a complaint, which enabled
her employer to terminate her employment
five months later based on the redundancy of
her reconstituted role.
Hart v. Hanover Cty. Sch. Bd., 2013 WL 1867388, at *5

(E.D. Va.

May 2, 2013), aff'd, 547 F. App'x 298 (4th Cir. 2013).
The

Complaint

does

not

state

specifically

the

duration

between Reardon's complaints in "early 2015" and her termination
on

June

15,

certainly

2015,

within

from June 15,
five

and

2015."

of

termination.
Reardon' s

favor,

Reardon

several

one-half

complaints

but

pay
Even
at

argues

months

(Pl. Mem.
months

or

discrimination
drawing
least

all

ten weeks,

"'early

approximately

at 26).

elapsed

that

in

four

Nonetheless,

between
"late

reasonable

2015'

months

at least

Reardon's
2014"

is

first

and

inferences

her
in

and quite possibly more,

elapsed between the "early 2015" complaints and her termination.

50

Here,

Reardon's

allegations

concerning

the

chronology

of

her protected activity are so vague that the Court is unable to
confidently determine whether temporal proximity might
an inference of causation.
lapse

of

adverse

two

months

action

is

significantly the
Fedder

(quoting King,

The Fourth Circuit has noted that "a

between

the

protected

'sufficiently

long

154

F.

App'x

361,

activity
as

the

weaken

Horne v.

Reznick

364

328 F.3d 145, 151 n.5) . . And,

and

to

so

inference of causation.'"

& Silverman,

support

(4th

Cir.

2005)

as noted above,

it

seems likely that Reardon's termination on June 15, 2015 was, at
best,
not

ten weeks
more.

later than her complaints in "early 2015," if

Furthermore,

retaliatory animus

or

Reardon

intervening

has

made

no

allegations

antagonism occurring

period between "late 2014" and her termination.
all

reasonable

inferences

in

favor

of

Reardon,

in

of
the

Even drawing
the

Court

is

unable to inf er from the pleaded facts in the Complaint a causal
relationship from these sparse and vague allegations.
In her

opposition brief,

Reardon makes

much

of

the

fact

that she received a positive performance evaluation in November
2014.

(Pl. Mem. at 24-26).

Reardon appears to contend that the

Court can infer from this positive evaluation that there could
be

no

non-retaliatory

motive

for

her

termination.

However,

receipt of a positive evaluation after the plaintiff has engaged
in protected activity is "antithetical to a claim of retaliation
51

and [tends] to break the causal chain."
827 F. Supp. 2d 532, 554

Jones v. Dole Food Co.,

(W.D.N.C. 2011)

to tell whether Reardon' s

And, it is impossible

positive performance evaluation cuts

in favor of a finding of causation or not, because the Court is
unable

to discern

from the

Complaint whether

Reardon

received

her positive evaluation before or after she first complained in
"late 2014" that she was receiving unequal wages because of her
sex.

Therefore, because Reardon has failed to allege facts from

which the Court can discern the sequence of events leading up to
her

termination,

Reardon's

concerning

allegations

her

performance fail to support an inference of causation.
In

sum,

the

absence

of

engaged in protected activity,

specific

dates

on

which

Reardon

combined with the absence of any

allegations to support an inference of antagonistic actions or
retaliatory

animus,

drawing

reasonable

facts

as

all

alleged,

makes

to

it

impossible

inferences

in

for

the

Reardon' s

find that Reardon has

Court,

favor

even

from the

adequately alleged

that the termination of her employment was causally related to
her

protected

activity

in

"late

2014"

and

"early

2015."

Therefore, Count II will be dismissed without prejudice and with
leave to amend.

52

CONCLUSION

For

the

DEFENDANTS'

reasons,

MOTION

TO

and

to

DISMISS

part and denied in part.

the

extent,

(ECF No.

5)

set

forth

will be

above,

granted

in

The motion to dismiss the Office of

the Attorney General as a defendant will be granted as to both
Counts.

The motion to dismiss Count I

denied.

The motion to dismiss Count II against Herring will be

granted.

Reardon

Complaint,

and

may

will

against Herring will be

be

given

leave

to

replead

Count

II

there

if

file

an

are

Amended
facts

support pleading a legally sufficient causal link.
It is so ORDERED.

/s/
Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date:
June 3, 2016

53

to