United States District Court for the District of Columbia
March 30, 2004.
KATHLEEN M. SCHRADER, Plaintiff
KENNETH Y. TOMLINSON[fn1],[fn9], Chairman, Broadcasting Board of Governors, Defendant
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
I. Factual Background
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).
A. Standard of Review
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 civil action or
claim against the United States, not exceeding $10,000 in amount, founded
either upon the Constitution, or any act of Congress." Id.
(citing 28 U.S.C. § 1346(a)(2); Doe v. Pep't of Justice,
753 F.2d 1092, 1101 (D.C. Cir. 1985)).*fn3
Thus, the key issue in determining whether this Court has jurisdiction
over plaintiff's EPA claim is whether plaintiff's claim exceeds $10,000.
Plaintiff has not asserted a claim for a
sum certain in her complaint, however, defendant contends that the
Court may infer that plaintiff's claim exceeds $10,000 as she alleges
that "since 1997, she has been paid less than . . . Maniscalco
(currently a GS-13, Step 9 [employee]). . . ." Def.'s Mem. at 9. This
inference can be made, defendant opines, because "[i]t is undisputed that
the difference between a GS-12 and a GS-13 salary, for the years 1997 to
the present, is approximately $10,000 per year." Id.; see
also Def.'s Mot., Exhibit ("Ex.") D (Declaration of James Carson
Cooper, Human Resources Specialist at BBG dated February 6, 2002)
("Cooper Decl."), ¶ 11 and Attachments 5-10 (Federal Salary Tables
for years 1997-2002). As is apparent from the defendant's submissions,
the pay disparity between plaintiff's and Maniscalco's salary for 1997
alone exceeds $10,000. Cooper Decl., Attach. 5 (noting salary for
plaintiff's position, GS 12-8 was $56,661 and salary for Maniscalco's
position, GS 13-9, was $69,196, in 1997).
Furthermore, plaintiff has not provided any argument or evidence
showing that her claims do not amount to at least $10,000, and thus
seemingly concedes defendant's position that her claims exceed that
amount. See, e.g., Day v. Dep't of Consumer & Regulatory
Affairs, 191 F. Supp.2d 154, 159 (D.D.C. 2002) ("If a party fails
to counter an argument that the opposing party makes in a motion, the
court may treat that argument as
conceded.") (citation omitted); Bancoult v. McNamara,
227 F. Supp.2d 144, 149 (D.D.C. 2002) ("[I]f the opposing party files a
responsive memorandum, but fails to address certain arguments made by the
moving party, the court may treat those arguments as conceded, even when
the result is dismissal of the entire case.") (citations omitted).
Accordingly, the Court concludes that plaintiff's EPA claim should be
dismissed as jurisdiction lies solely in the Court of Federal Claims.
See Weber v. Hurtgen, 297 F. Supp.2d 58, 62 (D.D.C. 2003) ("In
light of [plaintiff's] damages [for compensatory and back pay losses,
which amounted to more than $10,000] the Court lack[ed] jurisdiction and
transfer[red] the EPA claim to the Court of Federal Claims.") (citation
omitted); De Leon, 2003 WL 21767504, at *2 (transferring
plaintiff's EPA claims to Court of Federal Claims, "the only court in
which the claim could have been properly brought).*fn4
C. Plaintiff's Title VII claims
Regarding plaintiff's Title VII's claims, defendant argues that these
claims are subject to dismissal because plaintiff has not complied with
Title VII's requirement that an EEO officer be advised about the claims
within 45 days of the discriminatory
action. Def.'s Mem. at 11 (citing 29 C.F.R. § 1614.105(a)(1)).
Plaintiff first sought EEO counseling on February 25, 2000, long after
the actions she complains about.*fn5 See Def.'s Mem. at 11;
Def.'s Mot., Ex. A (Deposition of Kathleen Schrader dated October 11,
2001) ("Schrader Dep.") at 40. In opposition, plaintiff contends that she
is pursuing her claims pursuant to the continuing violation theory, and
because the defendant has "`engaged in a systematic policy of
discrimination[,]'" the Court should conclude that her claims have been
timely filed. Pl.'s Opp'n at 2. Specifically, as it pertains to the
alleged disparity in her pay, plaintiff states that "each paycheck is a
continuing violation of a protected right[,]" id. (citation
omitted), and she is presumably arguing that since she received less pay
than one of her male counterparts within 45 days of reporting her
discrimination claims to an EEO counselor, she satisfied the 45-day
A Title VII plaintiff must exhaust her administrative remedies prior to
filing a lawsuit in federal court. Brown v. General Services
Admin., 425 U.S. 820, 823-33 (1976). Federal employees are required,
as a prerequisite to filing a Title VII suit, to
contact an EEO counselor within 45 days after the alleged
discriminatory event. 42 U.S.C. § 2000e-16(c);
29 C.F.R. § 1614.105(a)(I).*fn6 Contact with an EEO counselor
is a prerequisite to filing a lawsuit "to ensure that discrimination
claims first undergo conciliation attempts at the agency level."
Acklin v. Nat'l Gallery of Art Bd. of Trustees, No. Civ.A. 85-4041, 1986
WL 15790, at *3 (D.D.C. May 2, 1986) (citations omitted). "[T]he
plaintiff who fails to comply, to the letter, with administrative
deadlines `ordinarily will be denied a judicial audience.'" Brown v.
Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985) (citation omitted).
Plaintiff relies on the continuing violation theory as the basis for
salvaging her untimely filed claims. A continuing violation exists
"[w]here the discriminatory practice is continuing in nature." Gary
v. Washington Metro. Area Transit Auth., 886 F. Supp. 78, 89 (D.D.C.
1995). In cases of continuing discriminatory violations, "the required
time periods for filing administrative complaints should run `from the
last occurrence of the discrimination and not from the first
occurrence.'" Id. (citing 118 Cong. Rec. 7167 (1972)
(conference report)). To adequately allege a continuing violation,
plaintiff "must show
that at least one adverse employment action occurred within the
[45-day limitations] period" that was related to the claims falling
outside the filing period. Id. "Specific, unrelated incidents
of discrimination do not constitute a continuing violation."
Id. Moreover, the District of Columbia Circuit has clearly held
that a plaintiff may not rely on the continuing violation theory where
she was aware of the discriminatory conduct at the time it occurred.
See Taylor v. Federal Deposit Ins. Corp., 132 F.3d 753, 765
(D.C. Cir. 1997) ("[f]or statute of limitations purposes, a continuing
violation is `one that could not reasonably have been expected to be made
the subject of a lawsuit when it first occurred because its character as
a violation did not become clear until it was repeated during the
limitations period'") (citation omitted); see also Albritton v.
Kantor, 944 F. Supp. 966, 971 (D.D.C. 1996) ("[i]f the employee
could not perceive discrimination until a series of acts occurred, then
the employee should be able to plead the earlier, [otherwise] time-barred
claim") (citing Berry, 715 F.2d at 981; Sheppard v.
Adams, 670 F. Supp. 22, 25 (D.D.C. 1987)).
Here, defendant has demonstrated that plaintiff had knowledge of the
alleged discriminatory practices being carried out by the defendant long
before February 2000, when she first initiated contact with an EEO
Counselor, because it is apparent from plaintiff's own testimony that she
was aware she was the victim
of discrimination as early as 1994, and certainly by 1998, two full
years before she sought EEO counseling. Regarding the fact that she did
not receive a QSI in 1994, plaintiff testified that she knew that males
had received QSIs, although she did not complain at that time. Def.'s
Mot., Ex. A (Schrader Dep.) at 47; see also id. at 56 (In
response to the question, "So you knew in 1994 that you were you
had been discriminated against, based on your allegations in paragraph
(c)?," plaintiff responded "Yes."). Furthermore, plaintiff testified that
in 1998, when she did not receive the position as Lead Technician, she
was aware she was being discriminated against. Id. at 63-64.
Clearly, the continuing violation theory is not available to plaintiff as
to these claims when she had reason to know of the discrimination, at the
latest, in 1998, and did not initiate contact with a counselor until
approximately two years later. See Tavlor, 132 F.3d at 765
(holding that plaintiffs did not establish a continuing violation where
the alleged retaliatory action, according to plaintiffs, "amply
manifested itself as a possible retaliation from the start");
Kilpatrick v. Riley, 98 F. Supp.2d 9, 18 (D.D.C. 2000)
(holding that continuing violation theory did not apply to plaintiff's
discrimination claim, which occurred in 1980, where plaintiff filed an
EEO complaint in 1991 and, according to plaintiff's own factual account,
by 1980 he already believed that his employer systematically
non-white employees); Rendon v. District of Columbia,
No.CIV.A.85-3899, 1986 WL 15446, at *3 (D.D.C. Nov. 19, 1986) (holding
that plaintiff's claims of race discrimination that she knew or had
reason to know about and that were not timely filed with the EEOC were
barred from consideration by the Court).
As already noted, plaintiff seems to be arguing that her EPA claim
invokes the continuing violation theory, and because she and Maniscalco
presumably received disparate paychecks within 45 days of her EEO
counselor contact, all of her discrimination claims are salvaged. Pl.'s
Opp'n at 2-4. Plaintiff cites Bazemore v. Evans, 478 U.S. 395,
396 (1986), as support for this position, however, that case is
distinguishable from the present case. There, the Supreme Court found
that the plaintiffs had established that there had been a pattern of
discrimination, as evidenced by the disparity in pay between blacks and
whites, that had begun prior to Title VII's applicability to the
defendant employer and continued thereafter. Id. Thus, in
regards to the plaintiffs' rights to recover for these pay disparities,
the Court held:
Each week's paycheck that delivers less to a black
than to a similarly situated white is a wrong
actionable under Title VII, regardless of the fact
that this pattern was begun prior to the effective
date of Title VII.
Id. at 395-96.
However, Bazemore concerned a pattern of disparate payment of
wages to black employees as compared to white employees,
id. at 395, whereas here, plaintiff's complaint concerns one
employee Maniscalco. See Affidavit of Kathleen Schrader
dated March 5, 2002 ("Schrader Aff.") at 2 ("From approximately October
1997 to the present, I am paid at a lower rate (GS-12) than Richard
Maniscalco. (GS[-]13) for doing equal work."). Thus, plaintiff's EPA
claim can be construed as a complaint about not being promoted to a GS-13
position and not receiving GS-13 pay, in light of the fact that she was
allegedly doing the same work as a GS-13 employee. In Williams v.
Munoz, 106 F. Supp.2d 40 (D.D.C. 2000), the Court rejected
plaintiff's reliance on Bazemore and held that the continuing
violation theory was not applicable to her claim of discrimination.
There, the plaintiff argued that she was paid less than a comparable male
employee, and "each paycheck she received was one of a series of related
acts, each one an additional violation, because each was for less than
she would have been paid had she been promoted." Id. at 42-43.
The Williams Court noted that the Supreme Court in
Bazemore "limited [its] holding to the facts before it, which
were quite different from the facts of this case." Id. at 43
(citation omitted). The Williams Court held that the crux of
plaintiff's claim was the failure to promote because, "[i]f the amount of
[plaintiff's] paychecks was too little each month, it was in consequence
of the failure to promote, not an individual violation. As [plaintiff]
has alleged no acts occurring within the statutory period, [she]
has not established a continuing violation." Id. The Court
finds the Williams Court's reasoning persuasive here. Plaintiff
has not established a pattern or system of discrimination against women
generally; rather, the only premise she has established is that she was
being paid less than Maniscalco, not that females in general were paid
less than men. See Compl. ¶ 6(b) (stating that plaintiff
seeks "promotion to the positions she is entitled to[;]"); Schrader Aff.
at 4 ("For relief, I am seeking to be made whole by means of a promotion
to grade 13 retroactive to the date that the others doing the same work
were receiving higher pay . . .")
However, the Court need not base its decision on this argument because,
as argued by defendant in its summary judgment papers, plaintiff has
failed to establish that she and Maniscalco. were similarly situated and
thus should have been paid the same wages, a requirement for a prima
facie Title VII allegation. To rely on the continuing violation
theory as the basis for reviving stale claims, the timely filed claim
must itself be a viable Title VII claim. See Gary, 886 F. Supp.
at 90 (granting summary judgment to the defendant on plaintiff's
retaliation claims because "[o]nly two retaliatory incidents alleged by
[p]laintiff [fell] within the 180 day charge-filing period and these two
incidents fail[ed] to constitute actionable retaliation. . . . Given
there are no meritorious timely-failed claims, [p]laintiff cannot
rely on the continuing violation theory to save her remote retaliation
claims."). In this case plaintiff has failed to establish that her timely
filed claim establishes a prima facie case of disparate treatment in that
"all relevant aspects of [her] employment situation were `nearly
identical' to those. . . ." of Maniscalco. Neuren v. Adduci,
Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)
(citation omitted). The only evidence plaintiff has put forth in support
of her argument that she and Maniscalco. were similarly situated is a
conversation she had with another employee, a Ms. Mitchell, wherein
plaintiff stated to Mitchell that Maniscalco. was "an Avid editor, just
like. . . ." she was. Schrader Aff. at 2.*fn7 This is not sufficient
to defeat a motion for summary judgment, particularly in light of the
defendant's evidence that demonstrates that Maniscalco. had been a GS-13
employee with OCB since 1991, was reassigned as a result of a RIF to
Worldnet, and was, pursuant to the RIF procedures, guaranteed the right
to remain at the GS-13 level because that was his level prior to the RIF.
See Def.'s Mem. at 38. And, notably, plaintiff has refused to
perform a desk audit,
which conceivably could result in a promotion to a GS-13 position.
Id. at 39. Thus, she has not made out a prima facie case of
discrimination concerning the salary she has received. See Barbour
v. Browner, 181 F.3d 1342, 1345-46 (D.C. Cir. 1999) (reversing
jury's verdict in favor of plaintiff employee in Title VII action as the
plaintiff failed to establish that she was similarly situated to another
employee she argued was treated more favorably because the comparator
employee had duties "more numerous and weighty" than the plaintiff's and
the other employee had agreed to perform a desk audit to demonstrate that
she performed at a GS-13 level, which the plaintiff refused to do). In
addition, plaintiff has failed to refute the defendant's legitimate
explanation for the pay differential between herself and Maniscalco
namely, that Maniscalco. had different required duties than
plaintiff. Id. at 36. Indeed, plaintiff testified to that fact
at her deposition. See Def.'s Mot., Ex. A (Schrader Dep.) at
141-142. Accordingly, the Court concludes that defendant is entitled to
summary judgment on plaintiff's claim that she was paid unequal pay as
she has failed to establish that she and Maniscalco. were similarly
situated and thus entitled to be paid the same wages. It therefore cannot
act as the trigger for invoking the continuing violation theory, and
because the Court has concluded that plaintiff's other allegations were
not timely filed, plaintiff has failed to allege a basis for denying
the defendant's motion.
In accordance with the Court's Memorandum Opinion that is being issued
contemporaneously with the issuance of this Order, it is hereby
ORDERED that Defendant's Motion to Dismiss, or in the
Alternative, for Summary Judgment [#21] is granted. It is further
ORDERED that plaintiff's Equal Pay Claim is dismissed without
prejudice for lack of subject matter jurisdiction.*fn10 It is further
ORDERED that plaintiff's Title VII non-wages claims are
dismissed due to plaintiff's failure to exhaust her administrative
remedies. It is further
ORDERED that defendant is granted summary judgment as it
pertains to plaintiff's Title VII wags claim. It is further
ORDERED that except for plaintiff's Equal Pay Claim, all of
her other claims are dismissed with prejudice.
*fn2 Plaintiff's Memorandum of Law in Opposition to Motion for Summary
Judgment consists of only four pages. Additional arguments are contained
in plaintiff's affidavit and an unsigned statement of opposing facts that
was also submitted by plaintiff but not signed by her.
*fn3 Conversely, the Court of Federal Claims has "jurisdiction to
render judgment upon any claim against the United States. . . ."
28 U.S.C. § 1491 (a)(1).
*fn4 While transfer of this case to the Court of Federal Claims would
be appropriate, neither party in this case has requested transfer to that
Court. However, if plaintiff desires the Court to transfer her EPA claim
to the Court of Federal Claims, she shall so advise the Court within
thirty days of the issuance of this opinion and the Court will re-open
this case and transfer this matter accordingly.
*fn5 The lowered performance evaluation occurred in 1991; plaintiff's
failure to obtain QSIs occurred in 1993-94, although she notes that from
1990-97, male counterparts routinely received QSIs; in February, 1998 a
male was chosen to be a Lead Technician; in October 1998, two males were
detailed to work on the "This Week" program; and plaintiff has been paid
less than Maniscalco, in violation of the EPA. Def.'s Mem. at 11 (citing
Schrader Dep. at 30-31; 38, 40, 47, 55, 63, 66, 108-110, 130).
*fn6 29 C.F.R. § 1614.105(a)(1) provides: "An aggrieved person
must initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of personnel action,
within 45 days of the effective date of the action."
*fn7 Plaintiff has also submitted an unsigned statement, in which she
takes exception to the material facts identified by the defendant and
gives her personal account of the facts. This unsworn statement by
plaintiff is also insufficient to defeat a motion for summary judgment.
See Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits
shall be made on personal knowledge . . . and show competently
that the affiant is competent to testify to the matters stated
therein. . . .). In any event, nothing in plaintiff's statement
establishes that she and Maniscalco. are similarly situated in all
*fn8 An Order consistent with the Court's ruling accompanies this
*fn10 If plaintiff desires to have this claim transferred to the Court
of Federal Claims, she must so advise the Court within thirty days of the
issuance of this Memorandum Opinion.
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