Owens v. Thompson

• Court: District Court, District of Columbia
• Decided: March 28, 2024
• Docket: Civil Action No. 2023-0662
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARY OWENS,

Plaintiff,

v. Civil Action No. 23-662 (TSC)

SANDRA L. THOMPSON, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Mary Owens has sued Sandra L. Thompson in her official capacity as Director

of the Federal Housing Finance Agency (“FHFA”), as well as the FHFA itself, under (1) Title

VII of the Civil Rights Act of 1964, and (2) the Equal Pay Act. Am. Compl., ECF No. 9.

Defendants have moved to dismiss the Title VII claim. See Defs.’ Partial Mot. to Dismiss, ECF

No. 14 (“MTD”). For the reasons set forth below, the court will DENY that motion, but will sua

sponte dismiss Plaintiff’s Equal Pay Act claim.

I. BACKGROUND

At the pleadings stage, the court assumes the truth of the following allegations from the

Amended Complaint. Plaintiff applied for a Policy Analyst position with FHFA on December

19, 2016. Am. Compl. ¶ 10. FHFA offered her a position as Policy Analyst with a grade level

of EL-11 and salary of $78,630. Id. ¶¶ 11, 14. Plaintiff attempted to negotiate her starting salary

but was told she was not allowed to do so. Id. ¶ 12. Instead, per a policy in place between 2008

and 2021, FHFA used a new employee’s prior salary to determine their grade level and starting

salary—offering them “10% more than their previous salary.” Id. ¶¶ 16, 19. In Plaintiff’s case,

Page 1 of 10 “FHFA relied only upon Plaintiff’s prior salary” in determining her grade level and salary. Id.

¶ 22. Plaintiff accepted the position and began working in February 2017. Id. ¶ 13.

Plaintiff alleges that, in general, FHFA’s policy “resulted in lower wages for female

employees as compared to male employees with substantially similar or identical jobs,” and that

in her case specifically, it resulted in her being the only Policy Analyst assigned to EL-11 rather

than EL-12, even though they performed the same job. Id. ¶¶ 18, 21. “Had FHFA relied on

other factors in Plaintiff’s salary determination, there are no legitimate, non-discriminatory

reasons for Plaintiff’s pay disparity. Plaintiff’s starting salary cannot be justified by differences

in her education, experience, training, or ability when compared to male policy analysts.” Id.

¶ 23. “A male policy analyst . . . hired by FHFA in September 2016 who had less relevant

experience than Plaintiff had a salary of $110,000,” and a “male with less education and less

relevant experience than Plaintiff was hired in November 2017 as a policy analyst at grade level

EL-12 . . . , with a starting salary of $92,621.” Id. ¶¶ 24–25.

Since being hired, “Plaintiff continues to make less than her male colleagues in

substantially similar, if not identical, roles” at least in part because “FHFA inconsistently applies

its salary-increase policies, approving pay increases for males that it refuses to approve for

females, regardless of performance.” Id. ¶¶ 26, 28; see also id. ¶ 33 (noting that pay increases

are tied to an employee’s base pay, “further perpetuating Plaintiff’s pay inequality”). “For

example, Plaintiff completed an internship at the White House for which she was given no credit

to her years of experience while a male colleague was given credit for a substantially similar

internship at the White House.” Id. ¶ 32. Plaintiff’s “salary well below that of her male

colleagues” persists despite her being “the highest performing Policy Analyst.” Id. ¶¶ 36, 38.

Page 2 of 10 Based on these allegations, Plaintiff brings two claims. Count I asserts that Defendants

have discriminated against her based on her sex, violating Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-16 et seq. Am. Compl. ¶¶ 41–59. Count II asserts that Defendants

have failed to provide equal pay to Plaintiff for work substantially equal to that of her male

colleagues, violating the Equal Pay Act, 29 U.S.C. § 206(d). Am. Compl. ¶¶ 60–72. Defendants

have moved to dismiss the Title VII claim under Federal Rule of Civil Procedure 12(b)(6), but

“maintain that the district court has jurisdiction to proceed with Plaintiff’s Equal Pay Act claim.”

MTD at 1.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Courts “treat the

complaint’s factual allegations as true” and “grant plaintiff the benefit of all inferences that can

be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.

Cir. 2000) (quotation marks and citation omitted). That said, “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. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. And a court need not accept as true “a legal

conclusion couched as a factual allegation,” nor “inferences . . . unsupported by the facts set out

in the complaint.” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006)

(quotation marks and citation omitted).

III. ANALYSIS

Plaintiff has stated a Title VII claim. But her Equal Pay Act claim must be dismissed

because jurisdiction over that claim rests exclusively with the Court of Federal Claims. Page 3 of 10 A. Title VII claim

A plaintiff may plead a claim of discrimination under Title VII by alleging “that (1) he is

a member of a protected class, (2) he suffered an adverse employment action, and (3) the

unfavorable action gives rise to an inference of discrimination (that is, an inference that his

employer took the action because of his membership in the protected class).” Brown v. Sessoms,

774 F.3d 1016, 1022 (D.C. Cir. 2014) (quoting Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C.

Cir. 2002)). Defendants do not dispute that Plaintiff has met the first two requirements by

alleging that she is a woman who has been paid less than her male colleagues. Instead, they

argue that she has failed to plead facts “creat[ing] any inference of gender discrimination under

Title VII.” MTD at 5; see id. at 3–9. That argument fails.

“A plaintiff can raise an inference of discrimination by showing ‘that she was treated

differently from similarly situated employees who are not part of the protected class.’” Sessoms,

774 F.3d at 1022 (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)). At the

pleadings stage, then, she “must allege some facts to ground a reasonable inference that [she]

was in fact similarly situated to comparator employees.” Keith v. U.S. Gov’t Accountability Off.,

No. CV 21-2010 (RC), 2022 WL 3715776, at *3 (D.D.C. Aug. 29, 2022). It is not enough, for

instance, to simply plead that a comparator is “a ‘co-worker’” without “further allegations of

similarity in job duties” or “comparative information about . . . qualifications.” Id. at *4; see

also Doe #1 v. Am. Fed’n of Gov’t Emps., 554 F. Supp. 3d 75, 103 (D.D.C. 2021) (holding that

merely labeling a potential comparator as plaintiff’s “counterpart” was “fatally nonspecific”

without more information about their job duties or credentials”).

Plaintiff has sufficiently pled facts establishing similarly situated comparators. She

alleges the existence of at least two better-paid male colleagues who had the same job title as her,

were hired around the same time, and had the same or less relevant education and experience Page 4 of 10 than her. Am. Compl. ¶¶ 24–25. She “identified a similarly-situated employee who is not in her

protected class and explained why she has equivalent qualifications,” Sessoms, 774 F.3d at 1023,

which is enough to “raise [her] right to relief above the speculative level,” id. (quoting Twombly,

550 U.S. at 555). See, e.g., Dickerson v. Dist. of Columbia, 315 F. Supp. 3d 446, 454 (D.D.C.

2018) (holding that Black plaintiff stated a Title VII discrimination claim by alleging that “a

white woman with less education and experience than [him] was selected to fill his position”).

As a result, she has stated a claim of discrimination under Title VII.

Defendants’ counterarguments are unavailing. Their citations to cases requiring “nearly

identical” comparators at the summary judgment, trial, or post-trial stage do not alter the

pleading standard on a motion to dismiss. See MTD at 5 (quotation omitted). And they cite no

authority for their contention that Plaintiff must plead that her comparators were hired at the

exact same time as her, by the exact same decision-maker. Id. Requiring that level of specificity

to establish similar situation would be inconsistent with what courts generally consider to be “a

very low bar for alleging an inference of discrimination.” Azzam v. Dist. of Columbia, No. 19-

CV-3365 (TSC), 2022 WL 4182187, at *6 (D.D.C. Sept. 13, 2022). Granting Plaintiff “the

benefit of all inferences that can be derived,” Sparrow, 216 F.3d at 1113, from the allegations

that male co-workers with the same jobs received higher salaries despite equal or lesser

education and experience, she has plausibly pled that her lower salary was discriminatory. That

is enough for her Title VII claim to survive a motion to dismiss.

* * *

There is one related matter to address. Plaintiff’s Amended Complaint appears to raise

her Title VII claim under a theory of disparate treatment. See, e.g., Am. Compl. ¶¶ 52 (“FHFA

treated Plaintiff differently than her male colleagues”), 58 (referring to “FHFA’s disparate

Page 5 of 10 treatment of female employees”), 59 (same). As noted above, she has adequately stated such a

claim. However, a Title VII discrimination claim may also rely on a “disparate impact theory,”

which requires “showing that even if the employment practice was not intended to discriminate,

it ‘in fact [had] a disproportionately adverse effect on minorities.’” Menoken v. McGettigan, 273

F. Supp. 3d 188, 198 (D.D.C. 2017) (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009)),

aff’d sub nom. Menoken v. Pon, No. 17-5228, 2018 WL 2383278 (D.C. Cir. May 9, 2018). In

opposing Defendants’ Motion, Plaintiff suggests that she may wish to also press her claim under

that theory. Opp’n to Mot. to Dismiss at 5–7, ECF No. 16 (“Opp’n”). “It is well-established in

this district that a plaintiff cannot amend his Complaint in an opposition to a defendant’s . . .

motion to dismiss.” Petrucelli v. Dep’t of Just., 453 F. Supp. 3d 126, 135 (D.D.C. 2020)

(quoting Durand v. Dist. of Columbia, 38 F. Supp. 3d 119, 129 (D.D.C. 2014) (collecting

cases)). Consequently, while Plaintiff’s Title VII claim in any event survives Defendant’s

Motion under a theory of disparate treatment, if Plaintiff seeks to clarify that claim as including a

theory of disparate impact, she may move for leave to file an amended complaint.

To prevail, a theory of disparate impact must “identify[] the specific employment practice

that is challenged” and provide “statistical evidence of a kind and degree sufficient to show that

the practice in question has caused the exclusion of applicants for jobs or promotions because of

their membership in a protected group.” Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994

(1988). But a Plaintiff need not plead every element of the prima facie case in order to survive a

motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). For instance,

although a plaintiff “need not present statistical evidence in his complaint, he must be able to

present such evidence at some point.” Jianqing Wu v. Special Couns., No. 14-7159, 2015 WL

10761295, at *2 (D.C. Cir. Dec. 22, 2015). Any proposed amendments to Plaintiff’s allegations

Page 6 of 10 would need to satisfy the usual standards to support a theory of disparate impact discrimination

under Title VII.

B. Equal Pay Act claim

Plaintiff’s Equal Pay Act claim, however, must be dismissed for lack of jurisdiction.

Although neither party seeks dismissal, courts “have an independent obligation to determine

whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”

Brown v. Jewell, 134 F. Supp. 3d 170, 176 (D.D.C. 2015) (quoting Arbaugh v. Y & H Corp., 546

U.S. 500, 514 (2006)). The D.C. Circuit has long held that the Court of Federal Claims retains

exclusive jurisdiction over federal sector claims exceeding $10,000 under the Fair Labor

Standards Act (“FLSA”)—which includes the Equal Pay Act—because such claims depend on

the Little Tucker Act. Waters v. Rumsfeld, 320 F.3d 265, 270–72 (D.C. Cir. 2003). Where, as

here, the Complaint does not “clearly and adequately express” an intent to waive FLSA claims in

excess of $10,000, “the Court of Federal Claims has exclusive jurisdiction to adjudicate those

claims, and the district court [is] without jurisdiction to rule on their merits.” Id. at 272.

Accordingly, the court must dismiss Plaintiff’s Equal Pay Act claim.

Defendants argue that Waters is no longer good law since the Supreme Court’s decision

in United States v. Bormes, 568 U.S. 6 (2012). MTD at 10–11. Bormes held that because the

Fair Credit Reporting Act (“FCRA”) created “a detailed remedial scheme, only its own text” can

waive sovereign immunity, and the plaintiffs could not rely on the Little Tucker Act’s waiver to

pursue their FCRA claims. 568 U.S. at 15. Thus, Defendants contend, the Little Tucker Act’s

jurisdictional limits should not govern district court authority over FLSA claims (including Equal

Pay Act claims), either.

Courts in this district, along with the Federal Circuit itself, have unanimously rejected

that position. As the Federal Circuit explained, the Bormes decision’s Page 7 of 10 ruling and its rationale do not extend to [an] FLSA suit. In sharp contrast to the statute at issue in Bormes, the FLSA contains no congressional specification of a non-Tucker Act forum for damages suits, or any other basis, from which one can infer that application of the Tucker Act would override choices about suing the government embodied in the remedial scheme of the statute providing the basis for liability. That statute-specific conclusion takes this FLSA case outside the reach of the Bormes principle.

Abbey v. United States, 745 F.3d 1363, 1369 (Fed. Cir. 2014); see also Johnson v. Lightfoot, 273

F. Supp. 3d 278, 288 n.5 (D.D.C. 2017) (rejecting Defendants’ position); Adair v. Bureau of

Customs & Border Prot., 191 F. Supp. 3d 129, 133 (D.D.C. 2016) (same). At the very least,

Bormes does not so clearly override Waters that it removes this court’s obligation “to follow

controlling circuit precedent until either [the Circuit], sitting en banc, or the Supreme Court,

overrule[s] it.” Alston v. Bethea, No. CV 22-3595 (JEB), 2023 WL 4198203, at *3 (D.D.C. June

27, 2023) (quoting United States v. Torres, 115 F. 3d 1033, 1036 (D.C. Cir. 1997)); Adair, 191

F. Supp. 3d at 133. Accordingly, the court will continue to follow Waters.

Plaintiff advances an additional argument against dismissal: that the court should exercise

ancillary jurisdiction over her Equal Pay Act claim. Opp’n at 7–8. The doctrine of ancillary

jurisdiction “recognizes federal courts’ jurisdiction over some matters (otherwise beyond their

competence) that are incidental to other matters properly before them.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 378 (1994). “Generally speaking,” ancillary jurisdiction is

asserted for two purposes “(1) to permit disposition by a single court of claims that are, in

varying respects and degrees, factually interdependent,” and “(2) to enable a court to function

successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its

decrees.” Id. at 379–80; see also Rochon v. Gonzales, 438 F.3d 1211, 1215 (D.C. Cir. 2006). In

Plaintiff’s view, “this Court also has ancillary jurisdiction over the EPA claim because Plaintiff’s

Title VII claim is factually interdependent with her EPA claim.” Opp’n at 7.

Page 8 of 10 The court is not persuaded that ancillary jurisdiction over the Equal Pay Act claim is

appropriate here. Plaintiff identifies no case in which any court has taken ancillary jurisdiction

over an Equal Pay Act claim—or any other claim for which exclusive jurisdiction is vested in

another court. Indeed, when courts in this district have encountered similar arguments, they

appear to have rejected them. In Franklin-Mason v. Penn, the plaintiff argued that the court

should “exercise ancillary jurisdiction” over a breach-of-settlement claim “that otherwise

[would] fall within the Court of Federal Claims’ exclusive jurisdiction.” 616 F. Supp. 2d 97, 101

(D.D.C. 2009). The court declined to do so, observing that “nothing in the language of

Kokkonen indicates that parties can create jurisdiction over a claim for which jurisdiction is

expressly reserved for a different body.” Id. Another court, though it ultimately did not need to

resolve the question, likewise expressed “doubt” about “the continued viability of ancillary

jurisdiction” over claims belonging to the exclusive jurisdiction of the Court of Federal Claims.

Washington v. Geren, No. CIVA 08-1502 (JR), 2010 WL 1781619, at *1 n.5 (D.D.C. Apr. 30,

2010), aff’d, No. 1:08-CV-01502-JR, 2010 WL 4976510 (D.C. Cir. Dec. 2, 2010). Because

jurisdiction over Plaintiff’s Equal Pay Act claim rests exclusively with the Court of Federal

Claims, the court will not exercise ancillary jurisdiction over it, and the claim will be dismissed.

Page 9 of 10 IV. CONCLUSION

For these reasons, the court will DENY Defendants’ Partial Motion to Dismiss, ECF No.

14. However, the court will sua sponte DISMISS Plaintiff’s Equal Pay Act claim. A

corresponding Order will accompany this Memorandum Opinion.

Date: March 28, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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