The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
*fn1 Pursuant to Fed.R.Civ.P. 25(d), Mr. Tomlinson has been
substituted as the named defendant in this action.
*fn9 Pursuant to Fed.R.Civ.P. 25(d), Mr. Tomlinson has been
substituted as the named defendant in this action.
The plaintiff in this lawsuit alleges that she has been treated less
favorably than her male co-workers in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), and
the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2000) ("EPA").
Currently before the Court is the defendant's motion to dismiss, or in
the alternative, for summary judgment ("Def.'s Mot."). The Court
concludes that this motion must be granted for the reasons set forth
Plaintiff, Kathleen Schrader, is employed by the defendant "as a GS
12-8 Broadcast technician in the Video Tape Branch, Technical Operations
Directorate, Office of WorldNet Television and Film Services. . . ."
Plaintiff's Complaint, filed November
21, 2000 ("Compl.") ¶ 1. She has brought this suit against the
Chairman of the Broadcasting Board of Governors ("BBG"), which "is the
federal entity that oversees the International Broadcasting Bureau
("IBB"), [and] is comprised of Worldnet Television and Film Service
("Wordlnet"), Voice of America ("VOA"), and the Office of Cuba
Broadcasting ("OCB")." Memorandum of Points and Authorities in Support of
Defendant's Motion for Summary Judgment ("Def.'s Mem.") at 2. Plaintiff
alleges that she has been the victim of the defendant's "continuing
pattern of employment discrimination based upon her gender. . . ."
Id. ¶ 2.
Plaintiff's allegations of discrimination consist of the following: (1)
she received a performance evaluation rating that was changed from
"outstanding" to "satisfactory"; (2) she did not receive Quality Step
Increases ("QSIs") despite the fact that three of her male counterparts
received such awards between 1990 and 1997; (3) she was not given a
"within grade award" for learning an "advanced computer edition system
. . ." called Avid in 1993, despite the fact that she learned the
system on her free time, and was chosen in 1994 to be on a team
exclusively using Avid; (4) her male coworker, Jack Slomnicki, was chosen
to be a lead technician in February 1998, although the work she was
performing "would have justified similar recognition . . ."; (5) two
males were selected for a special detail to edit a new
program called "This Week" even though one of them had less
experience than her and they later received "Tech of the Year" awards for
this program; (6) she has been paid less than her male coworker, Richard
Maniscalco; (7) Slomnicki and Maniscalco. received cash awards that
plaintiff did not receive because of her gender; and (8) she was excluded
from a VOA detail for which she was qualified. Compl. ¶ 2(a)-(g). As
a result of these events, plaintiff seeks full back pay and equal pay;
promotion to a GS-13 position; a ban on retaliatory conduct by the
agency; compensatory damages; and any additional relief deemed
appropriate by the Court. Id. ¶ 6.
As grounds for his motion which is the subject of this opinion,
defendant first contends that this Court lacks subject matter
jurisdiction over plaintiff's Equal Pay Act claims because, as plaintiff
seeks in excess of $10,000 from the BBG, which is a governmental entity,
exclusive jurisdiction of this claim is vested in the Federal Court of
Claims. Def.'s Mem. at 7. Next, defendant argues that the Court lacks
jurisdiction over plaintiff's Title VII claims because plaintiff failed
to exhaust her administrative remedies by timely contacting an Equal
Employment Opportunity ("EEO") counselor about her claims. Id.
at 11. In opposition*fn2, plaintiff first argues that this Court
has jurisdiction over her Equal Pay Act Claim because such
jurisdiction is conferred upon the Court pursuant to
29 U.S.C. § 216(b). Plaintiff's Memorandum of Law in Opposition to
Motion for Summary Judgment ("Pl.'s Opp'n") at 2. Second, plaintiff
argues that she properly exhausted her administrative remedies because
her Title VII claims were timely filed pursuant to the continuing
violation theory, as "each paycheck is a continuing violation of a
protected right." Id. Furthermore, plaintiff argues that the
evidence she has produced establishes that the defendant "`engaged in a
systematic policy of discrimination,'" which also supports her continuing
violation theory. Id. at 2-3 (citation omitted).
Defendant seeks dismissal of plaintiff's Equal Pay Act and Title VII
claims pursuant to Federal Rule of Civil Procedure 12(b)(1). Federal
Rule of Civil Procedure 12(b)(1) permits dismissal of a complaint if
the Court "lack[s] jurisdiction over the subject matter. . . ."
Pursuant to this rule, "the plaintiff bears the burden of establishing
that the court has jurisdiction." Fowler v. District of
Columbia, 122 F. Supp.2d 37, 39-40 (D.D.C. 2000) (citation
omitted). The rule also imposes "an affirmative obligation [on the Court]
to ensure that it is acting within the scope of its jurisdictional
authority . . .
[and for that] reason, the `[p]laintiff's factual allegations in
the complaint . . . will bear closer scrutiny in resolving a 12(b)(1)
motion' than on a 12(b)(6) motion for failure to state a claim."
Id. at 40 (citations omitted). In addition, the Court may
consider matters outside the pleadings to assure itself that it in fact
has jurisdiction over this case. Id.
Defendant has also, in the alternative, moved for summary judgment.
Federal Rule of Civil Procedure 56 provides that summary judgment "shall
be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if "a reasonable
jury could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The entry of summary
judgment is appropriate after there has been an "adequate time for
discovery . . . [and the] party [against whom the motion has been
filed] fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will
bear the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
B. Plaintiff's Equal Pay Claim
The Equal Pay Act "`prohibits payment of unequal wages for
equal work on grounds of sex[.]'" De Leon v. England, No.
Civ.A. 02-473, 2003 WL 21767504, at *2 (D.D.C. Feb. 20, 2003) (quoting
Thompson v. Sawyer, 678 F.2d 257, 263 (D.C. Cir. 1982)).
Plaintiff argues that 29 U.S.C. § 216(b) provides this Court with
jurisdiction over plaintiff's EPA claims. Pl.'s Opp'n at 2.
29 U.S.C. § 216(b) provides that an employee suffering a violation of
29 U.S.C. § 206 may file an action against his or her employer "in any Federal
or State court of competent jurisdiction. . . ." (emphasis
added). However, it is well established that "[c]laims brought pursuant
to the Equal Pay Act must satisfy the jurisdictional requirements of the
Tucker Act, 28 U.S.C. § 1491." De Leon, 2003 WL 21767504,
at *2 (citations omitted). Significantly, 28 U.S.C. § 1346(a)(2),
which is "commonly referred to as the `Little Tucker Act,' expressly
limits the jurisdiction of this Court to any non-tort ...