Bowe–Connor v. Shinseki

• Decision Date: 24 February 2012
• Docket Number: Civil Action No. 10–2032 (JDB).
• Citation: 845 F.Supp.2d 77
• Parties: Shelia S. BOWE–CONNOR, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veteran Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

845 F.Supp.2d 77

Shelia S. BOWE–CONNOR, Plaintiff,

v.Eric K. SHINSEKI, Secretary of Veteran Affairs, Defendant.

Civil Action No. 10–2032 (JDB).

United States District Court, District of Columbia.

Feb. 24, 2012.

Morris Eli Fischer, Law Office of Morris E. Fischer, LLC, Silver Spring, MD, for Plaintiff.

Laurie J. Weinstein, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Shelia S. Bowe–Connor (“Bowe–Connor” or “plaintiff”) brings this action against Eric K. Shinseki, in his capacity as the Secretary of Veterans Affairs, (“Secretary” or “defendant”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the Equal Pay Act, 29 U.S.C. § 206(d)et seq. (“EPA”). Compl. ¶¶ 1, 2, 4, 8. The complaint—which was filed when Bowe–Connor was proceeding pro se— ¹ generally contends that officials at the Department of Veterans Affairs (“VA”) discriminated against Bowe–Connor on the basis of age, sex, and national origin; retaliated against her due to her Equal Employment Opportunity Commission (“EEOC”) activity; and subjected her to a hostile work environment. Id. ¶¶ 5, 13, 23. Plaintiff also asserts that male pharmacists performing the same work were paid more than she was, in violation of the EPA. Id. ¶¶ 35–36. Before the Court are the Secretary's motion to dismiss plaintiff's Title VII and ADEA claims for failure to exhaust and failure to state a claim, Fed.R.Civ.P. 12(b)(6), and motion to dismiss plaintiff's EPA claim for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). See Def.'s Mot. to Dismiss (“Def.'s Mot.”). Also before the Court are motions filed by Bowe–Connor for a pretrial conference, to move reports and records from her EEOC proceedings to this action, and to strike defendant's reply. For the reasons discussed below, the Court denies the Secretary's motions for summary judgment and to dismiss for failure to state a claim; grants the Secretary's motion to dismiss the EPA claim for lack of subject matter jurisdiction; and denies Bowe–Connor's motions in their entirety.

BACKGROUND

Bowe–Connor, a female resident of Laurel, Maryland over the age of 40, has been employed by the VA for over twenty-three years as a pharmacist at the VA Medical Center in Washington, D.C. Compl. ¶ 7. She was employed at the facility's inpatient pharmacy as of 1987 and thereafter relocated to the outpatient pharmacy to accommodate increases in veteran enrollment and prescription volume. Id. Bowe–Connor maintains that she has been promoted—over the course of her employment—“to the next grade level” based on her years of service and that she has “always received outstanding performance evaluations, rewards, bonuses, and verbal recognition by coworkers and supervisory staff.” Id. ¶ 9.

Bowe–Connor contacted an EEO counselor on March 5, 2009, and upon conclusion of counseling, received a Notice of Right to File a Discrimination Complaint with the VA. See id. ¶ 22; Def.'s Mot., Ex. A (Partial Acceptance of EEO Complaint) at 1. Plaintiff went on to file a formal EEO complaint with the VA on April 17, 2009. Compl. ¶ 22; see also Def.'s Mot., Ex. B. In that complaint, she stated the basis for her claims as age, national origin, harassment, and sex. Under “Claims”, Bowe–Connor listed the following, seemingly in respect to her age claim: (1) no promotion or opportunity for advancement and (2) salary disparities between older and younger pharmacists. With respect to her “national origin” claim, she referred to the hiring of an Ethiopian supervisor “without merit” because he was “not best qualified”. And with respect to her harassment claim, she listed “hostile work environment,” which she described as “verbal and emotional harassment,” and the filing of reports of contact without her knowledge.² The VA complaint also appears to list “sabotaging prescriptions, falsifying report of contact forms” and “constant altercations with employees” as aspects of that claim. Next to “sex,” Bowe–Connor listed “[d]isparate treatment of male pharmacist over female pharmacist” and states that “[m]ost” of the male pharmacists are paid higher salaries and promoted faster”. Def.'s Mot., Ex. B.

According to the Final Agency Decision that Bowe–Connor has attached to her complaint, her complaint filed before the VA alleges that

officials at the VA Medical Center in Washington, D.C., discriminated against [plaintiff] on the bases of age (over 40 years), national origin (American), sex (female), and reprisal (prior EEO activity) when she was subjected to hostile environment harassment consisting of the following events: (1) during September 2008 her supervisor was not qualified for his position; (2) on February 18, 2009, she received a letter of reprimand for incidents which occurred on October 8, 2008, January 22, 2009, and January 26, 2009; (3) on March 3, 2009, her supervisor notified her that she was going to receive a notice of proposed discipline for an incident which occurred on February 11, 2009; (4) during March 2009, most of the male pharmacists were paid at a higher salary and promoted faster than female pharmacists; (5) on April 10, 2009, her supervisor notified her that she was going to receive a five-day suspension and be placed on leave restriction; and (6) on May 19, 2009, she received a letter of counseling for excessive leave usage.

Compl., Ex. II at 1.

Bowe–Connor's EEO complaint was partially accepted by the VA's Office of Resolution Management (“ORM”). See id.; Def.'s Mot., Ex. A at 1–2. As stated in the Final Agency Decision, Claims (1) and (2) listed above were dismissed by the ORM, pursuant to 29 C.F.R. § 1614.107(a)(2), because they had not been discussed with an EEO Counselor, and Claim (4) was dismissed pursuant to 29 C.F.R. § 1614.107(a)(4), because Bowe–Connor had already chosen to engage in her union's grievance procedure and was precluded from seeking an EEOC remedy on the same claim. See Compl., Ex. II at 1–2; Def.'s Mot., Ex. A at 2. The remaining claims—Claims (3), (5) and (6) discussed above—were investigated, and at the conclusion of the investigation, Bowe–Connor was informed of her right to request either a hearing and decision by an EEOC administrative judge, followed by final action by the VA, or request an immediate final decision by the VA without a hearing. Compl., Ex. II at 2. Bowe–Connor requested a hearing, and the complaint was assigned to an EEOC administrative judge. Id.

On October 28, 2010, Bowe–Connor sent a letter to the administrative judge assigned to her case, which states in relevant part: “The agency has decided not to settle the case. This leaves me with no option but to pursue the case in the U.S. District Court for the District of Columbia for litigation. Your prompt attention to this matter is greatly appreciated. Thank you in advance.” Compl., Ex. I. Upon receipt of the letter, the administrative judge issued an order dismissing Bowe–Connor's Hearing Request on November 3, 2010 and returned jurisdiction to the agency. Id. Ex. 2 at 2. The VA, while acknowledging that the administrative judge's order was “somewhat ambiguous,” nevertheless deemed Bowe–Connor to have “knowingly and voluntarily withdr[awn] her complaint in its entirety from the EEOC process,” as manifested in her letter to the administrative judge. It reasoned that there was “no logical way to interpret her letter as a withdrawal of her hearing request without at the same time interpreting it as a complete withdrawal of her complaint from the administrative process.” Id. at 3. Accordingly, Bowe–Connor's EEOC complaint was dismissed and she was notified of her right to either appeal the decision to the EEOC or file a civil action in United States District Court. Id. at 3–4.

Bowe–Connor then filed this action on November 29, 2010. Her complaint in this Court contains four specific counts: Count I for reprisal and harassment, consisting of her receipt of a “letter of written counseling for excessive leave usages” and management's “depleti[on of] Plaintiff's leave”; Count II for age discrimination in violation of the ADEA stemming from being called “one of the ‘GOLDEN GIRLS' ”; Count III for equal pay and sex discrimination in violation of the EPA and Fair Labor Standards Act (which contains the EPA) because plaintiff was paid “lower wages than ... [were] male employees performing work requiring equal or less skill, effort, responsibility and which is performed under similar working conditions”; and Count IV for national origin discrimination under Title VII based on plaintiff's “[s]upervisor of Ethiopian descent show[ing] favoritism to fellow co-workers of Ethiopiandescent by accommodating their schedule, bonuses, and awards.” Compl. ¶¶ 32–38.

In addition, Bowe–Connor seems to suggest a number of other grievances under Title VII as a result of her treatment by supervisors and colleagues at the VA Medical Center, including that she suffered from “adverse employment action ... called progressive discipline” and “verbal abuse and harassment,” that her “prescriptions were being sabotaged,” and that she was “disciplined for dispensing medication to a Veteran who had not received his medication in the mail.” Id. ¶¶ 16–20. Bowe–Connor also appears to raise a claim of retaliation based on her EEO complaint, asserting that she “has not received promotions, bonuses, [or] rewards since filing ... an EEOC complaint in April 2009 and [the subsequent] formal investigation between November 17 and December 29, 2009.” Id. ¶ 13.

The Secretary has moved to dismiss Bowe–Connor's claims under Title VII and the ADEA for failure to exhaust her administrative remedies and failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). Def.'s Mot. at 7–11. With regard to plaintiff's EPA claim, the Secretary seeks to dismiss it for...