Hardiman v. Lipnic, No. 18 CV 05702

• Decision Date: 22 April 2020
• Docket Number: No. 18 CV 05702
• Citation: 455 F.Supp.3d 693
• Parties: Alison HARDIMAN, Plaintiff v. Victoria A. LIPNIC, Chair of the U.S. Equal Employment Opportunity Commission, Defendant.
• Court: U.S. District Court — Northern District of Illinois

455 F.Supp.3d 693

Alison HARDIMAN, Plaintiff

v.Victoria A. LIPNIC, Chair of the U.S. Equal Employment Opportunity Commission, Defendant.

No. 18 CV 05702

United States District Court, N.D. Illinois, Eastern Division.

Signed April 22, 2020

Keith L. Spence, Law Office of Keith L. Spence, Chicago, IL, for Plaintiff.

AUSA, Susan Willoughby Anderson, Office of the United States Attorney, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for administering and enforcing civil rights laws against workplace discrimination. But quis custodiet ipsos custodes ?¹ The answer, at least in this suit, is the plaintiff, Alison Hardiman, an EEOC employee who alleges that the agency discriminated against her based on her race and gender by promoting her but denying her the increased salary and support associated with the higher position. The EEOC has moved to dismiss Hardiman's amended complaint under Rule 12(b)(1) and 12(b)(6). The EEOC's motion is granted in part and denied in part: granted to the extent that Hardiman's claims rest on an alleged violation of the Equal Pay Act ( 29 U.S.C. § 206(d) ), 42 U.S.C. § 1981, or the No FEAR Act ( 5 U.S.C. § 2301 ), and otherwise denied.

BACKGROUND²

Alison Hardiman was hired by the U.S. Equal Employment Opportunity Commission (EEOC) on May 14, 2007. Am. Compl. ¶ 8, ECF No. 19. She is currently employed as a GS-9 Information Technology Specialist for the EEOC. Id. According to Hardiman, she was—at some unspecified point—selected for a promotion to a GS-11/12 Information Technology Specialist position. Id. at ¶ 11. The problem, however, is that she was not informed of the promotion (at least until more recently). Id. The result of this clandestine promotion is that "Hardiman works as a IT Specialist GS-11/12, but is paid a GS-9 salary." Id. Hardiman believes that the promotion was concealed from her due to her race and gender.

In addition to the inadequate pay, Hardiman alleges that she has been deprived of the institutional support and advancement opportunities properly due to her in the GS-11/12 position. Hardiman compares her experience to a previous GS-11/12—a White man, whereas Hardiman is an African American woman. Id. ¶ 10. The White male GS-11/12, she alleges, received "proper pay, assistance with his duties, perks, and was slotted into the GS-12 IT specialist position in less than a year." Id. Hardiman says she received no similar support. She alleges, for example, that on two separate occasions, she requested assistance with computer migrations, but received only one additional technician. Id. ¶ 13. The previous GS-11/12, by comparison, "received 9 additional technicians to assist" in his computer migrations. Id. Hardiman also "believes that she and other similarly situated African-American employees were routinely and disproportionately denied training opportunities," which disadvantaged them when seeking promotions. Id. ¶ 14.

Prior to bringing this suit, Hardiman filed a charge with the EEOC—serving, in this capacity, not as her employer but as the federal agency responsible for overseeing workplace discrimination claims. Id. ¶ 7. The EEOC issued a Final Order entering judgment against Hardiman and sent her a right to sue notice. Id. Hardiman filed suit on August 21, 2018.

DISCUSSION

The EEOC has moved to dismiss Hardiman's amended complaint under both Rule 12(b)(1) and Rule 12(b)(6). A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The party asserting jurisdiction bears the burden of proof. United Phosphorus, Ltd. v. Angus Chem. Co. , 322 F.3d 942, 946 (7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc. , 683 F.3d 845 (7th Cir. 2012). Where, as here, the defendant issues a facial challenge to the sufficiency of the allegations regarding subject matter jurisdiction, the Court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. See Apex Digital, Inc. v. Sears, Roebuck & Co. , 572 F.3d 440, 443-44 (7th Cir. 2009).

The EEOC argues that the Court lacks jurisdiction over Hardiman's claim to the extent that it is premised on a violation of the Equal Pay Act ("EPA") because the United States has not waived sovereign immunity to suit in a district court for a claim premised on the EPA.³

"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Because the Equal Pay Act does not contain a specific jurisdiction-granting waiver of sovereign immunity, EPA claims against the federal government must satisfy the jurisdictional requirements of a pre-existing waiver of sovereign immunity—the Tucker Act, 28 U.S.C. § 1346(a)(2) and 28 U.S.C. § 1491. See Barnes v. Levitt , 118 F.3d 404, 410 (5th Cir. 1997) ; Huddleston v. Donovan , 524 F. Supp. 179, 182 (N.D. Ill. 1981) ; Schrader v. Tomlinson , 311 F. Supp. 2d 21, 25 (D.D.C. 2004) (stating that "it is well established" that EPA claims must satisfy the jurisdictional requirements of the Tucker Act). The "Big Tucker Act," § 1491, provides jurisdiction over non-tort claims for money damages to the Court of Federal Claims, whereas the "Little Tucker Act," § 1346(a)(2), provides concurrent jurisdiction over a more limited set of such claims to district courts. Perhaps intuitively, the Little Tucker Act limits district court jurisdiction to smaller claims—those "not exceeding $10,000 in amount." 28 U.S.C. § 1346(a)(2) ; see also Clark v. United States , 691 F.2d 837, 840 (7th Cir. 1982) ("Without a statutory waiver, the district courts have no jurisdiction over a claim for damages against the United States, and the Tucker Act bars their jurisdiction over claims like these in excess of $10,000.") (internal citations omitted).

Hardiman's EPA claim does not specify an amount of monetary relief sought, but that cannot save her. Omission on this question is fatal: it is Hardiman's burden to plead allegations sufficient to establish subject matter jurisdiction. See Bell v. U.S. Army , No. C/A 3:07CV03523-GRA, 2008 WL 4680568, at *4 (D.S.C. Oct. 21, 2008) (collecting cases and stating, "the Court is persuaded by the numerous courts that have held that the plaintiff bears the burden of demonstrating that his claims do not exceed the $10,000 in damages required for concurrent district court jurisdiction"). Cf. Republic Franklin Ins. v. Cmty. Consol. Sch. Dist. 168 , No. 03 C 3439, 2003 WL 22901258, at *2 (N.D. Ill. Dec. 8, 2003) ("Jurisdiction cannot be based on guesswork; a party must plead necessary jurisdictional facts such as citizenship and the amount in dispute." (citing Boggs v. Adams , 45 F.3d 1056, 1059 n.7 (7th Cir. 1995) )). As a result, to the extent that Hardiman's claim rests on an alleged violation of the EPA, it must be dismissed for lack of subject matter jurisdiction.⁴

Hardiman's attempts to invoke 42 U.S.C. § 1981 and the Notification and Federal Employer Anti-discrimination and Retaliation Act ("No FEAR Act"), 5 U.S.C. § 2301, fare no better. Because the Tucker Act "does not create any substantive right enforceable against the United States for money damages," jurisdiction under its terms requires reference to an additional federal statute that confers a "substantive right to recover money." United States v. Testan , 424 U.S. 392, 398, 407, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (finding that the Court of Federal Claims lacked jurisdiction over claims brought pursuant to the Classification Act and the Back Pay Act because neither "creat[ed] a substantive right in the respondents"). See also United States v. Mitchell , 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act.").

Neither § 1981 nor the No Fear Act pass this "substantive right" test. In Brown v. General Services Administration , the Supreme Court found that § 1981 provided no remedy for employment discrimination by the federal government because, by expanding Title VII coverage, Congress intended to create an "exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." 425 U.S. 820, 829, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).⁵ Accordingly, the federal courts lack jurisdiction over a claim by a federal employee to the extent that it rests on an alleged violation of § 1981. See, e.g., Washington v. O'Rourke , No. 17 CV 8290, 2018 WL 3659354, at *2 (N.D. Ill. Aug. 2, 2018) (dismissal for lack of subject matter jurisdiction over § 1981 claim asserted by federal employee). See generally Brown , 425 U.S. at 829, 835, 96 S.Ct. 1961 (Title VII provides exclusive administrative and judicial remedies for discrimination against federal employees).

As to the No FEAR Act, courts have consistently found that the statutory text "does not create a private right of action." Hearne v. Jones , No. 15 C 3513, 2015 WL 3798113, at *2 (N.D. Ill. June 18, 2015). Most do so in terms of concluding that the absence of a private right of action necessarily implies an absence of subject matter jurisdiction. See, e.g., Semmes v. United States , 2009 WL 10688451, *5 (N.D. Ala. Mar. 31, 2009) ; Mallard v. Brennan , 2015 WL 2092545, *9 (D. ME May 5, 2015) ; Midyett v. Henley , 2012 WL 13169817, *1 (D. Ark. Oct. 29, 2012) ; see also Glaude v. United States , 248 F. App'x 175, 177 (Fed. Cir. 2007) ("[T]he No FEAR Act is not a money mandating statute, and it does not provide the Court of Federal Claims with [Tucker Act] jurisdiction over Glaude's claims."). The Seventh Circuit has repeatedly held, however, that the existence of a private right of action is not jurisdictional. See, e.g., ...