United States District Court, E.D. Virginia, Richmond Division
E. Payne Judge
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.
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"). 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.
was employed by the OAG from approximately December 23, 2010
through June 15, 2015 as an assistant Attorney General
("AAG"). (Compl. 1 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. 15 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
• conducting criminal prosecutions on behalf of the
• conducting prosecutions of certain types of matters as
a Special Assistant United States Attorney;
• creating and administering the REALITY project, the
Attorney General's awareness campaign against
prescription drug abuse;
• reviewing and making recommendations to the Attorney
General on all requests to conduct criminal investigations of
state and local elected officials;
• providing advice and legal representation to the
Departments of State Police, Criminal Justice Services, and
Alcohol Beverage Control;
• providing legal guidance and prosecutorial assistance
to the Department of Environmental Quality and local
jurisdictions regarding environmental crimes committed in the
Commonwealth of Virginia;
• reviewing public safety bills submitted to the General
Assembly; drafting opinions for the OAG; and
• completing any other duties as assigned.
Id. ¶ 62.
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.
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. 11 28-29. In response, Reardon's
annual salary was increased in 2012 to $63, 000.00.
Id. ¶ 30.
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.
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.
"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 Ills. 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.
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 e-mail 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
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.
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,  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 Ills, 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.
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. ¶¶
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
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 (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.
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 F.App'x
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).
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
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).
Legal Standard: Fed.R.Civ.P. 12(b)(6)
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,
toAstate a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
should assume the veracity of all well-pleaded allegations in
the Complaint, and should deny a motion to dismiss where
those well-pleaded allegations state a plausible claim for
relief. Id. at 679. A claim is "plausible"
when the plaintiff pleads facts sufficient to allow the court
to draw the reasonable inference that the defendant is liable
for the alleged misconduct. Twombly, 550 U.S. at
556. The court should grant a motion to dismiss, however,
where the allegations are nothing more than legal
conclusions, or where they permit a court to infer no more
than a possibility of misconduct. Iqbal, 556 U.S. at
courts generally do not consider extrinsic evidence in
deciding motions under Rule 12(b)(6), "a court may
consider... documents central to a plaintiff's claim, and
documents sufficiently referred to in the complaint without
converting the [motion] into one for summary judgment, so
long as the authenticity of the documents is not
disputed." PBM Nutritionals, LLC v. Dornoch
Ltd., 667 F.Supp.2d 621, 626 (E.D. Va. 2009) (citing
Witthohn v. Fed. Ins. Co., 164 F.App'x 396, 396
(4th Cir. 2006)).
Reardon is Not Exempt from the Protections of the EPA: Counts
I and II
bring a claim under the EPA, a plaintiff must be an
"employee" as that term is defined by the Fair
Labor Standards Act ("FLSA"). 29 U.S.C. §
216(b); Dellinger v. Sci. Applications Int'l
Corp., 649 F.3d 226, 229 (4th Cir. 2011). Herring seeks
dismissal of Counts I and II because, in his view,
Reardon's position is excepted from the FLSA's
definition of employee.
FLSA's definition of employee includes "any
individual employed by an employer[, ]" 29 U.S.C. §
203(e)(1), except that certain state and local government
workers are not within the ambit of the statute.
Specifically, the term "employee" does not include
any individual employed by a state, political subdivision of
a state, or an interstate governmental agency:
(i) who is not subject to the civil service laws of the
State, political subdivision, or agency which employs him;
(I) holds a public elective office of that State, political
subdivision, or agency,
(II) is selected by the holder of such office to be a member
of his personal staff,
(III) is appointed by such an officeholder to serve on a
(IV) is an immediate adviser to such an officeholder with
respect to the constitutional or legal powers of his office,
(V) is an employee in the legislative branch or legislative
body of that State, political subdivision, or agency and is
not employed by the legislative library of such State,
political subdivision, or agency.
U.S.C. § 203 (e) (2) (C) .
contends that Reardon does not qualify as an
"employee" under the FLSA because she was not
subject to the civil service laws of Virginia in her role as
an AAG III and was "appointed by [an elected]
officeholder to serve on a policymaking level." (Def.
Mem. at 7-14). Specifically, Herring asserts that Reardon was
"appointed to serve...on a policymaking level"
because she "enjoyed a broad scope of responsibilities
that shared one commonality-they had the potential to shape
the policy of the Commonwealth." (Def. Mem. at 13) .
concedes that she was appointed by the Attorney General, an
elected official, and was not subject to civil service laws
in her role as an AAG. (PI. Mem. at 11). Therefore, the
dispositive question is whether Reardon "was
appointed...to serve on a policymaking level."
the parties are at odds over the meaning of the statutory
terms and the applicable controlling legal authority, they
are in agreement on certain principles. First, they agree
that whether an appointee falls within this exception to the
EPA's coverage is a question that is controlled by
''federal law, with state law relevant only insofar
as it describes the plaintiff's position, including his
duties and the manner in which he is hired, supervised, and
fired." United States v. Gregory, 818 F.2d
1114, 1116 (4th Cir. 1987). Second, they agree that, in
making this determination, courts must "focus
principally on the responsibilities and powers inherent in
the position, rather than on the actions of specific
individuals, including plaintiffs, who hold or have held the
position." Kelley v. City of Albuquerque, 542
F.3d 802, 810 (10th Cir. 2008); see also Butler v. New
York State Dept. of Law, 211 F.3d 739, 749 (2d Cir.
2000) (the court must "look at the attributes of the
position, not the actual performance of the job, to determine
whether the employee was a...high policymaker"). Third,
they agree that "an individual's status as a
policymaking employee frequently poses a fact
question...However, when the duties and responsibilities of a
particular position are clearly defined by law and
regulations, a court may resolve this issue without ...