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Shelia S. Bowe-Connor v. Eric K. Shinseki

February 24, 2012


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Shelia S. Bowe-Connor ("Bowe-Connor" or "plaintiff") brings this action against Eric K. Shinseki, in his capacity as the Secretary of Veterans Affairs, ("Secretary" or "defendant") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the Equal Pay Act, 29 U.S.C. § 206(d) et seq. ("EPA"). Compl. ¶¶ 1, 2, 4, 8. The complaint -- which was filed when Bowe-Connor was proceeding pro se --*fn1 generally contends that officials at the Department of Veterans Affairs ("VA") discriminated against Bowe-Connor on the basis of age, sex, and national origin; retaliated against her due to her Equal Employment Opportunity Commission ("EEOC") activity; and subjected her to a hostile work environment. Id. ¶¶ 5, 13, 23. Plaintiff also asserts that male pharmacists performing the same work were paid more than she was, in violation of the EPA. Id. ¶¶ 35-36. Before the Court are the Secretary's motion to dismiss plaintiff's Title VII and ADEA claims for failure to exhaust and failure to state a claim, Fed. R. Civ. P. 12(b)(6), and motion to dismiss plaintiff's EPA claim for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1). See Def.'s Mot. to Dismiss ("Def.'s Mot."). Also before the Court are motions filed by Bowe-Connor for a pretrial conference, to move reports and records from her EEOC proceedings to this action, and to strike defendant's reply. For the reasons discussed below, the Court denies the Secretary's motions for summary judgment and to dismiss for failure to state a claim; grants the Secretary's motion to dismiss the EPA claim for lack of subject matter jurisdiction; and denies Bowe-Connor's motions in their entirety.


Bowe-Connor, a female resident of Laurel, Maryland over the age of 40, has been employed by the VA for over twenty-three years as a pharmacist at the VA Medical Center in Washington, D.C. Compl. ¶ 7. She was employed at the facility's inpatient pharmacy as of 1987 and thereafter relocated to the outpatient pharmacy to accommodate increases in veteran enrollment and prescription volume. Id. Bowe-Connor maintains that she has been promoted -- over the course of her employment -- "to the next grade level" based on her years of service and that she has "always received outstanding performance evaluations, rewards, bonuses, and verbal recognition by co-workers and supervisory staff." Id. ¶ 9.

Bowe-Connor contacted an EEO counselor on March 5, 2009, and upon conclusion of counseling, received a Notice of Right to File a Discrimination Complaint with the VA. See id. ¶ 22; Def.'s Mot., Ex. A (Partial Acceptance of EEO Complaint) at 1. Plaintiff went on to file a formal EEO complaint with the VA on April 17, 2009. Compl. ¶ 22; see also Def.'s Mot., Ex. B. In that complaint, she stated the basis for her claims as age, national origin, harassment, and sex. Under "Claims", Bowe-Connor listed the following, seemingly in respect to her age claim: (1) no promotion or opportunity for advancement and (2) salary disparities between older and younger pharmacists. With respect to her "national origin" claim, she referred to the hiring of an Ethiopian supervisor "without merit" because he was "not best qualified". And with respect to her harassment claim, she listed "hostile work environment," which she described as "verbal and emotional harassment," and the filing of reports of contact without her knowledge. *fn2 The VA complaint also appears to list "sabotaging prescriptions, falsifying report of contact forms" and "constant altercations with employees" as aspects of that claim. Next to "sex," Bowe-Connor listed "[d]isparate treatment of male pharmacist over female pharmacist" and states that "[m]ost" of the male pharmacists are paid higher salaries and promoted faster". Def.'s Mot., Ex. B.

According to the Final Agency Decision that Bowe-Connor has attached to her complaint, her complaint filed before the VA alleges that officials at the VA Medical Center in Washington, D.C., discriminated against [plaintiff] on the bases of age (over 40 years), national origin (American), sex (female), and reprisal (prior EEO activity) when she was subjected to hostile environment harassment consisting of the following events: (1) during September 2008 her supervisor was not qualified for his position; (2) on February 18, 2009, she received a letter of reprimand for incidents which occurred on October 8, 2008, January 22, 2009, and January 26, 2009; (3) on March 3, 2009, her supervisor notified her that she was going to receive a notice of proposed discipline for an incident which occurred on February 11, 2009; (4) during March 2009, most of the male pharmacists were paid at a higher salary and promoted faster than female pharmacists; (5) on April 10, 2009, her supervisor notified her that she was going to receive a five-day suspension and be placed on leave restriction; and (6) on May 19, 2009, she received a letter of counseling for excessive leave usage. Compl., Ex. II at 1.

Bowe-Connor's EEO complaint was partially accepted by the VA's Office of Resolution Management ("ORM"). See id.; Def.'s Mot., Ex. A at 1-2. As stated in the Final Agency Decision, Claims (1) and (2) listed above were dismissed by the ORM, pursuant to 29 C.F.R. § 1614.107(a)(2), because they had not been discussed with an EEO Counselor, and Claim (4) was dismissed pursuant to 29 C.F.R. § 1614.107(a)(4), because Bowe-Connor had already chosen to engage in her union's grievance procedure and was precluded from seeking an EEOC remedy on the same claim. See Compl., Ex. II at 1-2; Def.'s Mot., Ex. A at 2. The remaining claims -- Claims (3), (5) and (6) discussed above -- were investigated, and at the conclusion of the investigation, Bowe-Connor was informed of her right to request either a hearing and decision by an EEOC administrative judge, followed by final action by the VA, or request an immediate final decision by the VA without a hearing. Compl., Ex. II at 2. Bowe-Connor requested a hearing, and the complaint was assigned to an EEOC administrative judge. Id.

On October 28, 2010, Bowe-Connor sent a letter to the administrative judge assigned to her case, which states in relevant part: "The agency has decided not to settle the case. This leaves me with no option but to pursue the case in the U.S. District Court for the District of Columbia for litigation. Your prompt attention to this matter is greatly appreciated. Thank you in advance." Compl., Ex. I. Upon receipt of the letter, the administrative judge issued an order dismissing Bowe-Connor's Hearing Request on November 3, 2010 and returned jurisdiction to the agency. Id. Ex. 2 at 2. The VA, while acknowledging that the administrative judge's order was "somewhat ambiguous," nevertheless deemed Bowe-Connor to have "knowingly and voluntarily withdr[awn] her complaint in its entirety from the EEOC process," as manifested in her letter to the administrative judge. It reasoned that there was "no logical way to interpret her letter as a withdrawal of her hearing request without at the same time interpreting it as a complete withdrawal of her complaint from the administrative process." Id. at 3. Accordingly, Bowe-Connor's EEOC complaint was dismissed and she was notified of her right to either appeal the decision to the EEOC or file a civil action in United States District Court. Id. at 3-4.

Bowe-Connor then filed this action on November 29, 2010. Her complaint in this Court contains four specific counts: Count I for reprisal and harassment, consisting of her receipt of a "letter of written counseling for excessive leave usages" and management's "depleti[on of] Plaintiff's leave"; Count II for age discrimination in violation of the ADEA stemming from being called "one of the 'GOLDEN GIRLS'"; Count III for equal pay and sex discrimination in violation of the EPA and Fair Labor Standards Act (which contains the EPA) because plaintiff was paid "lower wages than . . . [were] male employees performing work requiring equal or less skill, effort, responsibility and which is performed under similar working conditions"; and Count IV for national origin discrimination under Title VII based on plaintiff's "[s]upervisor of Ethiopian descent show[ing] favoritism to fellow co-workers of Ethiopian descent by accommodating their schedule, bonuses, and awards." Compl. ¶¶ 32-38.

In addition, Bowe-Connor seems to suggest a number of other grievances under Title VII as a result of her treatment by supervisors and colleagues at the VA Medical Center, including that she suffered from "adverse employment action . . . called progressive discipline" and "verbal abuse and harassment," that her "prescriptions were being sabotaged," and that she was "disciplined for dispensing medication to a Veteran who had not received his medication in the mail." Id. ¶¶ 16-20. Bowe-Connor also appears to raise a claim of retaliation based on her EEO complaint, asserting that she "has not received promotions, bonuses, [or] rewards since filing . . . an EEOC complaint in April 2009 and [the subsequent] formal investigation between November 17 and December 29, 2009." Id. ¶ 13.

The Secretary has moved to dismiss Bowe-Connor's claims under Title VII and the ADEA for failure to exhaust her administrative remedies and failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6). Def.'s Mot. at 7-11. With regard to plaintiff's EPA claim, the Secretary seeks to dismiss it for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), maintaining that the Court of Federal Claims would be the appropriate venue for those claims. Def.'s Mot. at 12.


As an initial matter, the Court is mindful that complaints submitted by plaintiffs proceeding pro se are reviewed by the court under "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). The court may also examine "other pleadings to understand the nature and basis of [plaintiff's] pro se claims." Chandler v. W.E. Welch & Assocs., 533 F. Supp. 2d 94, 102 (D.D.C. 2008) (quoting Gray v. Poole, 275 F.3d 1113, 1115 (D.C. Cir. 2002)). However, a pro se complaint must still plead "'factual matter' that permits the court to infer more than the 'mere possibility of misconduct.'" Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal citation omitted).

"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court -- plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); Equal Emp't Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan, 478 U.S. at 286. "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. ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.

A plaintiff's purported failure to exhaust administrative remedies is analyzed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. In that assessment, the court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice." St. Francis, 117 F.3d at 624. When, as here, on a Rule 12(b)(6) motion "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). "The decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to the sound discretion of the trial court." Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (citing 5C CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366 at 159 (3d ed. 2004)). In exercising this discretion, the "reviewing court must assure itself that summary judgment treatment would be fair to both parties." Tele-Commc'ns of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985).

Accordingly, here the Court will convert the Secretary's motion to dismiss filed under Rule 12(b)(6) into a motion for summary judgment. See Ahuja v. Detica, Inc., 742 F. Supp. 2d 96, 103 (D.D.C. 2010) (citing Langley v. Napolitano, 677 F. Supp. 2d 261, 263 (D.D.C. 2010) ("[I]t is 'probably the better practice for a district court to always convert to summary judgment so as to avoid . . . question[s]' as to whether the attached exhibits were properly consider[ed] in ruling upon a motion to dismiss under Rule 12(b)(6).") (citation omitted)); Bell v. Donley, 724 F. Supp. 2d 1, 6-7 (D.D.C. 2010); Johnson v. Peake, 634 F. Supp. 2d 27, 29-30 (D.D.C. 2009). "[B]ecause the Court must look outside the pleadings to resolve defendant's motion to dismiss, the Court will analyze plaintiff's alleged failure to exhaust her Title VII [and ADEA] administrative remedies under the summary judgment standard." Augustus, 699 F. Supp. 2d at 69 n.3. A motion may be treated as one for summary judgment even if the parties have not been provided with notice or an opportunity for discovery if they have had a reasonable opportunity to contest the matters outside of the pleadings such that they are not taken by surprise. See Cost v. Social Sec. Admin., 770 F. Supp. 2d 45, 49 (D.D.C. 2011); Highland Renovation Corp. v. Hanover Ins. Group, 620 F. Supp. 2d 79, 82 (D.D.C. 2009).

Summary judgment is appropriate where the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the ...

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