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Reardon v. Herring

United States District Court, E.D. Virginia, Richmond Division

June 3, 2016

MARK R. HERRING, in his Official Capacity as Attorney General of Virginia, et al., Defendants.


          Robert E. Payne Judge

         This 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.


         Plaintiff, 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").[1] 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.

         Reardon 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 to:

• conducting criminal prosecutions on behalf of the Attorney General;
• 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.

         During 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.

         Sometime 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.

         In 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.

         In 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.

         In "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.

         In 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 in original).

         Less 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.

         There 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, [2] 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.

         Reardon 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. ¶¶ 78-83.

         Herring 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 jurisdictional. Id.

         The 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).

         The 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 parties.

         Lastly, 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).


         A. Legal Standard: Fed.R.Civ.P. 12(b)(6)

         Fed. R. 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)).

         Courts 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 678-79.

         Although 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)).

         B. Reardon is Not Exempt from the Protections of the EPA: Counts I and II

         To bring a claim under the EPA, a plaintiff must be an "employee" as that term is defined by the Fair Labor Standards Act ("FLSA").[3] 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.

         The 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; and
(ii) who-
(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 policymaking level,
(IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or
(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.

         29 U.S.C. § 203 (e) (2) (C) .

         Herring 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) .

         Reardon 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 serve on a policymaking level."

         1. Undisputed Principles

         Although 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 ...

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