United States District Court, W.D. Virginia, Charlottesville Division
GLEN E. CONRAD UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
Id. ¶¶ 145-47;
June 2, 2017 Notice of Non-reappointment, Docket No. 14 Ex.
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
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.
parties did not request a hearing on the motion. The matter
has now been fully briefed and is ripe for review.
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