Reardon v. Herring
| Decision Date | 03 June 2016 |
| Docket Number | Civil Case No. 3:16-cv-34 |
| Citation | 191 F.Supp.3d 529 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Ann Marie REARDON, Plaintiff, v. Mark R. HERRING, in his Official Capacity as Attorney General of Virginia, et al., Defendants. |
James Broome Thorsen, Jesse Andrew Roche, Thorsen Hart & Allen, LLP, Richmond, VA, for Plaintiff.
Alison Drew Stuart, Steven David Brown, Isler Dare PC, Richmond, VA, for Defendants.
This matter is before the Court on DEFENDANTS' MOTION TO DISMISS (ECF No. 5). For the reasons set forth below, the motion will be granted in part and denied in part.
Plaintiff, Ann Marie Reardon, filed a Complaint ("Compl.," ECF No. 1) on January 15, 2016, alleging that Mark Herring ("Herring"), acting in his official capacity as Attorney General of Virginia, and the Office of the Attorney General ("OAG") (collectively, "Defendants") violated the Equal Pay Act of 1963 ("EPA").1 The factual allegations forming the bases for 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, 2015 as an assistant Attorney General ("AAG"). (Compl. ¶ 11). 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. Id.¶¶ 18-19. 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:
During the term of Reardon's employment, the OAG used matrix guidelines to determine attorney classification and pay. Id.¶ 22. In the matrix, the classification of attorneys is based on the number of years from the date of admission to the bar. Id.¶ 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.¶ 25. The 2011 matrix guidelines set a salary range of $70,000.00 to $90,000.00 for attorneys classified as AAG III. Id.¶ 27. Reardon's starting salary was $62, 000.00. Id.¶ 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 ("Dorgan"), a Senior Assistant Attorney General. Id.¶¶ 28-29. In response, Reardon's annual salary was increased in 2012 to $63,000.00. Id.¶ 30.
In 2013, the OAG updated its matrix guidelines, and set the AAG III salary range at $71,400.00 to $91,800.00. Id.¶¶ 31-32. On April 25, 2013, then-Attorney General Ken Cuccinelli ("Cuccinelli") notified Reardon of an increase in her annual salary to $64,000.00, in recognition of her excellent annual evaluation for the previous year. Id.¶ 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. Id.¶ 37. Reardon also raised the issue in her response to a 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, who then was the supervisor of Reardon's section, that she was "paid below the matrix guidelines and/or other male attorneys at the OAG." Id.¶ 39. At that time, Reardon's annual salary was approximately $65,280.00, well below the existing 2013 matrix guidelines for AAG IIIs. Id.¶ 41. Reardon also complained "numerous times" in "early 2015" to Jagels and Bryant about "being paid below the matrix guidelines and/or other male attorneys at the OAG." Id.¶ 42.
In 2015, the OAG again issued updated matrix guidelines, which set the AAG III salary range at $90,800.00 to $136,200.00. Id.¶ 43-44, 48. On May 29, 2015, all OAG attorneys were provided additional details about the new guidelines. Id.¶ 45. The email stated, in part, "the amount by which your 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." Id.¶ 46 (emphasis in original).
Less than three weeks after announcing the 2015 matrix guidelines, Reardon was informed that her employment was terminated. Id.¶ 67. At that time, Reardon's salary was still "far below" the minimum salary for the AAG III classification. Id.¶ 49.
There were six attorneys in Reardon's section in 2015, including Reardon; the other five attorneys were all male. Id.¶¶ 50-51. The Complaint alleges that the five male attorneys had between 13 and 21 years of bar experience,2 and that they received salaries ranging from $76,584.00 to $95,000.00 in 2014. Id.¶¶ 53-57. All five male attorneys were also classified as AAG IIIs, and their responsibilities were similar to Reardon's. Id.¶¶ 53-57, 63. Thus, in 2014, Reardon's annual salary was $11, 304.00 less than the lowest paid male AAG III attorney in Reardon's section. Id.¶ 59.
Reardon asserts two claims based on the foregoing allegations. In Count I, 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.¶¶ 69-77. In Count II, Reardon asserts that the termination of her employment constitutes unlawful retaliation that was caused by her complaints to supervisors concerning her salary. Id.¶¶ 78-83.
Herring and the OAG filed a motion to dismiss (ECF No. 5) the case for several reasons. First, the motion alleges a lack of subject matter jurisdiction and thus seeks dismissal under Fed. R. Civ. P. 12(b)(1). (Defendants' Memorandum of Law in Support of Motion to Dismiss ("Def. Mem.," ECF No. 6) at 5). The motion asserts that the EPA does not apply to Reardon because she was an appointee "on the policy-making level," and therefore not an "employee" within the meaning of the EPA. Defendants' motion takes the position that Reardon's employee status is an issue of standing, and therefore jurisdictional. Id.
The Supreme Court has held that a defendant's status as an "employer" within the meaning of federal employment discrimination laws is a substantive issue, rather than a jurisdictional one. Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The Court explained that, "when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Id. at 516, 126 S.Ct. 1235. 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 status as an "employee" within the meaning of federal employment discrimination laws is typically better suited for resolution under Fed. R. Civ. P. 12(b)(6), rather than Rule 12(b)(1), 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. See, e.g., Xie v. Univ. of Utah, 243 Fed.Appx. 367, 371 (10th Cir.2007) ; Price v. Waste Mgmt., Inc., 2014 WL 1764722, at *5 (D.Md. Apr. 30, 2014) ; German v. Akal Sec. Inc., 2011 WL 5974619, at *8 n. 14 (D.Md. Nov. 29, 2011) ; U.S. ex rel. Suh v. HCA – The Healthcare Co., 2009 WL 1834586, at *3 (E.D.N.C. June 23, 2009). Accordingly, to the extent that the motion to dismiss is brought under Rule 12(b)(1), it will be denied. However, the "employee" issue remains susceptible to resolution under Rule 12(b)(6).
The motion also seeks dismissal under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction because the OAG is not sui juris and thus may not be sued as an entity. Reardon agrees. Thus, to the extent that the motion is based on Rule 12(b)(2), it will be granted upon the agreement of the parties.
Lastly, the motion seeks dismissal under Fed. R. Civ. P. 12(b)(6) because Reardon has not adequately alleged a claim for either discrimination (Count I) or retaliation (Count II) under the EPA. (Def. Mem. at 14-22).
Fed. R. Civ. P. 12(b)(6) permits a party to move for dismissal of a claim if the complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 8(a)(2) requires "a short and plain statement of the claim" showing that the pleader is entitled to relief. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
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