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SCHRADER v. TOMLINSON

March 30, 2004.

KATHLEEN M. SCHRADER, Plaintiff
v.
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.

MEMORANDUM OPINION

  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 below.

  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 Page 2 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 Page 3 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 Page 4 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).

  II. Analysis

 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 . . . Page 5 [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 Page 6 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 ...


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