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Ackerson v. The Rector and Visitors of University of Virginia

United States District Court, W.D. Virginia, Charlottesville Division

November 7, 2017

BETSY ACKERSON, Plaintiff,
v.
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, Defendant.

          MEMORANDUM OPINION

          HON. GLEN E. CONRAD UNITED STATES DISTRICT JUDGE

         Plaintiff Betsy Ackerson brought this action against defendant the Rector and Visitors of the University of Virginia ("the University") for unequal pay, disparate treatment based on sex, sex discrimination, and retaliation for her complaints about unequal pay and poor accommodations for her medical condition. The case is presently before the court on defendant's partial motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. For the reasons stated below, the motion will be denied.

         Background

         In December 2012, the University hired Ackerson as a Project Manager for Strategic Planning for one year. Am. Compl. ¶¶ 29-30. In December 2013, the University sent Ackerson a letter notifying her that the University had extended her appointment by one year until December 24, 2014. Dec. 6, 2013 Extension Letter, Docket No. 16-1; Am. Compl. ¶¶ 63, 68-69. On December 22, 2014 and December 22, 2015, the University again extended Ackerson's contract for one year until December 24, 2015 and December 24, 2016, respectively. Dec. 22, 2014 Extension Letter, Docket No. 16-2; Dec. 22, 2015 Extension Letter, Docket No. 16-3.

         Before the latter extension expired, in April 2016, Ackerson received a letter explaining that the University had reassigned her to the position of Assistant Vice Provost. April 11, 2016 • Extension Letter, Docket No. 16-4. The letter stated that "[t]his position is limited in term and concludes December 24, 2017." Id.

         In June 2016, Ackerson filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") for sex and disability-based discrimination and retaliation. Charge of Discrimination, Docket No. 14 Ex. B. In the charge, Ackerson alleged that the University had retaliated against her for exercising her rights under the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), and the Rehabilitation Act, 29 U.S.C. § 794, et seq. Ackerson received her EEOC Notice of Right to Sue on January 12, 2017, Am. Compl. ¶ 9, and filed her original complaint on February 15, 2017.

         On June 2, 2017, the University sent Ackerson a letter that stated, in pertinent part:

[Y]our limited-term appointment with the University is set to expire by its own terms on December 24, 2017. As was stated in the e-mail to your counsel on May 24, 2017, that date is consistent with the continued and rapid completion of nearly all of your responsibilities. ... In light of the foregoing, this confirms that your current appointment with the University will end on December 24, 2017 and will not be renewed.

Id. ¶¶ 145-47; June 2, 2017 Notice of Non-reappointment, Docket No. 14 Ex. A.

         Ackerson then filed an amended complaint, in which she pleads that "UVA retaliated against Ackerson in June 2017 when it stripped Ackerson of duties and notified Ackerson that it would not renew her contract in December 2017, thereby terminating Ackerson's employment effective December 2017." Am. Compl. ¶ 185 (retaliation under the EPA); see id ¶217 (retaliation under the Rehabilitation Act). The same allegation forms the basis of plaintiff s new Count V for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. IcL ¶¶ 201-03.

         The defendant has moved to dismiss Count V and the other paragraphs in the amended complaint containing similar allegations for lack of subject matter jurisdiction. The defendant contends that Ackerson has failed to exhaust the retaliation claims made in those portions of the amended complaint and thus that the plaintiff has not satisfied the prerequisite for federal court jurisdiction in this matter.

         The parties did not request a hearing on the motion. The matter has now been fully briefed and is ripe for review.

         Standard of Review

         Rule 12(b)(1) provides for the dismissal of claims over which the court lacks subject matter jurisdiction. Where, "as here, a defendant challenges the existence of subject matter jurisdiction in fact, the plaintiff bears the burden of proving the truth of such facts by a preponderance of the evidence." U.S. ex rel Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). In reviewing such a challenge, a court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without ...


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