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Day-Lewis v. U.S. Equal Employment Opportunity Commission

United States District Court, E.D. Pennsylvania

September 16, 2014



L. FELIPE RESTREPO, District Judge.

Plaintiff, Kimberly Day-Lewis, brings this civil action against defendant, Jacqueline A. Berrien, Chair of the U.S. Equal Employment Opportunity Commission ("EEOC"), [1] alleging discriminatory conduct on the bases of plaintiff's race, age, and gender, as well as retaliation against her for engaging in protected activity. Specifically, plaintiff's Complaint alleges: (1) racial discrimination pursuant to Title VII of the Civil Rights Acts ("Title VII") (Count I), 42 U.S.C. § 2000e-2; (2) gender discrimination pursuant to Title VII (Count II); (3) an unequal pay claim pursuant to the Equal Pay Act, 29 U.S.C. § 206 (Count III); (4) age discrimination (disparate treatment) pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621(Count IV); and (5) retaliation pursuant to Title VII (Count VI).[2]

Before the Court are Plaintiff's Motion for Partial Summary Judgment (Doc. 37), defendant's opposition thereto (Doc. 45), Defendant's Motion for Summary Judgment (Doc. 39), plaintiff's opposition thereto (Doc. 46), and the parties respective reply briefs (Docs. 57, 58).[3] Plaintiff's motion requests partial summary judgment in her favor on her claims of race, age, and gender discrimination and on her wage discrimination claim under the Equal Pay Act. See Pl.'s Br. Supp. Pl.'s Summ. J. Mot. (herein cited as "Pl.'s Br.") 20. Defendant's motion requests summary judgment on the bases that the Court lacks jurisdiction over: (1) plaintiff's pay-based claims brought under Title VII, the ADEA, and the Equal Pay Act in that plaintiff irrevocably elected to raise and resolve those claims through a grievance procedure; (2) plaintiff's Equal Pay Act Claims because 28 U.S.C. § 1346(a)(2) bars the Court from exercising jurisdiction over such claims seeking in excess of $10, 000; and (3) plaintiff's claims related to the rescission of her 4/10 work schedule[4] and the lowering of her 2010 performance evaluations in that plaintiff similarly elected to pursue those matters through a negotiated grievance process.[5] Defendant further contends that plaintiff failed to timely exhaust administrative remedies for her non-selection and schedule-related claims, and in any event, that there is no genuinely triable dispute on plaintiff's claims of discrimination and retaliation. For the reasons that follow, defendant's motion is granted in part and denied in part, and plaintiff's motion is denied.


Defendant's claims alleging lack of subject-matter jurisdiction are raised under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Def.'s Br. Supp. Def.'s Mot. (herein cited as "Def.'s Br.") 1-2, 3-6; see also Fed.R.Civ.P. 12(b)(1). A 12(b)(1) motion may present a facial attack or a factual attack on the claim at issue. Constitution Party of Pa. v. Aichele , 757 F.3d 347, 357 (3d Cir. 2014) (citing In re Schering Plough Corp. Intron , 678 F.3d 235, 243 (3d Cir. 2012)). A facial attack is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court because, "for example, it does not present a question of federal law, or because there is no indication of a diversity of citizenship among the parties, or because some other jurisdictional defect is present." Id. In reviewing a facial attack, the Court must "consider the allegations of the Complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Id. (citing In re Schering Plough Corp. , 678 F.3d at 243) (internal quotation marks omitted).

"A factual attack, on the other hand, is an argument that there is no subject matter jurisdiction because the facts of the case - and here the District Court may look beyond the pleadings to ascertain the facts - do not support the asserted jurisdiction." Id. "A factual attack requires a factual dispute." Id. "In sum, a facial attack contests the sufficiency of the pleadings, ' In re Schering Plough Corp. , 678 F.3d at 243, whereas a factual attack concerns the actual failure of a [plaintiff's] claims to comport [actually] with the jurisdictional prerequisites." Constitution Party of Pa. , 757 F.3d at 357 (quoting CNA v. United States , 535 F.3d 132, 139 (3d Cir. 2008) (internal quotation marks omitted)).

The remaining claims raised by defendant's and plaintiff's respective motions request summary judgment under Rule 56. A party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact and that judgment is appropriate as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment has been made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986). An issue is "genuine" if a reasonable jury could rule in favor of the non-moving party based on the evidence presented. Kaucher v. Cnty. of Bucks , 455 F.3d 418, 423 (3d Cir. 2006). On a motion for summary judgment, the court considers the evidence in the light most favorable to the non-moving party. Anderson , 477 U.S. at 256.


A. Plaintiff's Pay-Based Claims

Defendant argues that the Court lacks jurisdiction over plaintiff's Equal Pay Act, Title VII, and ADEA "pay claims, " i.e. plaintiff's claims based on her being paid at the grade GS-12, step 1 level instead of being promoted or upgraded to a higher pay level. See Def.'s Br. 4. "Under the Civil Service Reform Act of 1978 (CSRA'), 5 U.S.C. §§ 7101 et seq. , a federal employee who believes he or she has been discriminated against and whose CBA provides for a negotiated grievance procedure addressing discrimination claims, can elect to file either a grievance under the CBA or an EEO complaint, but not both." Ilgenfritz v. Hon. Robert Gates, Sec'y of Dept. of Defense , 2010 WL 2978090, *6 (W.D. Pa. 2010) (citing 5 U.S.C. § 7121(d); 29 C.F.R. § 1614.301(a)) (emph. in original). Similarly, the relevant CBA between the union and the EEOC, which provides "negotiated grievance procedures, " provides that:

An aggrieved employee affected by discrimination or any other prohibited personnel practice under 5 U.S.C. § 2302(b)(1) of the [CSRA] may at his/her option raise the matter under a statutory procedure or the negotiated grievance procedure, but not both. The filing of a negotiated grievance under this Article [41.00] prior to invoking any applicable statutory procedure constitutes an election of the negotiated grievance procedure over any statutory procedure. This election occurs with the filing of a written grievance at Step 1.

(JA 727 (emph. added).)[6] "If an employee files a timely written grievance before filing a written EEO complaint, he (or she) has irrevocably chosen the negotiated grievance procedure, and is precluded from filing an EEO complaint on the same matter." Ilgenfritz , 2010 WL 2978090, at *6 (citing Rosell v. Wood , 357 F.Supp.2d 123, 128 (D. D.C. 2004)) (parenthetical added); Am. Fed'n of Gov't Employees, Local 2052 v. Reno , 992 F.2d 331, 332 (D.C. Cir. 1993). Accordingly, "[a]ny such complaint filed after a grievance has been filed on the same matter shall be dismissed." 29 C.F.R. § 1614.301(a). Defendant points out that plaintiff was such a federal employee, and she irrevocably elected to raise and settle her pay-based claims through a negotiated grievance procedure (JA 1088-89 (Mar. 8, 2010 Step-1 Grievance), 1140-41 (May 3, 2010 Step-2 Grievance), 1178-82 (May 21, 2010 EEO Complaint)). See Def.'s Br. 4.

In response, plaintiff acknowledges that "the Union filed a class grievance, with [plaintiff] serving as the class representative, to incite the EEOC to take administrative action... to implement the promotions and pay raises..." See Pl.'s Resp. to Def.'s Mot. (herein cited as "Pl.'s Resp. Br.") 18. Indeed, in settlement of this class grievance, plaintiff received her promotion to the GS-13 pay grade level, the grant of her hardship transfer request to the Raleigh Area Office, and three days of administrative leave to move (JA 1167). See Pl.'s Resp. Br. 18 n.26. However, plaintiff contends that her "individual pay-based discrimination claims based on Title VII, ADEA, and the [Equal Pay Act] do not constitute the same matter' as the narrowly tailored matter asserted in the class grievances."[7] See Pl.'s Resp. Br. 17. According to plaintiff, "[i]n order to determine if [plaintiff] has asserted the same matter' of that contained in her class grievance, [plaintiff] must have included the same, identical topics in both her class grievance and her discrimination complaint." Id. at 18. Plaintiff argues that "[t]he narrowly tailored issue grieved in the Union's class grievance does not constitute the same matter as [plaintiff's] pay-based discrimination claims because the issues disputed are not identical." Id. (emph. added).

"Too narrow a definition of matter' would frustrate the election provisions of § 7121(d). This in turn would undermine the CSRA's reliance on [CBAs], since clever drafting could then allow an employee to proceed both in a grievance and in an EEO complaint." Facha v. Cisneros , 914 F.Supp. 1142, 1148-49 (E.D. Pa. 1996), aff'd , 106 F.3d 384 (3d Cir. 1996). "Matter under § 7121(d) has a very broad scope referring to the underlying employment actions at issue in the dispute." Gill v. Summers , 2001 WL 283150, *3 (E.D. Pa. 2001) (emph. added). Thus, "[t]he term matter' in 5 U.S.C. § 7121(d) and 29 C.F.R. § 1614.301(a) has been interpreted to refer to the underlying [government] action' that gives rise to the grievance or complaint." Ilgenfritz , 2010 WL 2978090, at *7 (quoting Rosell v. Wood , 357 F.Supp.2d 123, 128 (D. D.C. 2004)) (citations omitted); see Bonner v. Merit Sys. Protection Bd. , 781 F.2d 202, 204 (Fed. Cir. 1986). "Two complaints refer to the same matter' if the disputed personnel action at the root of the employee's complaint is the same, regardless of the legal theory on which the action is challenged." Ilgenfritz , 2010 WL 2978090, at *7 (quoting Van Houten v. Gober , 1998 WL 966021, *5 (E.D. Pa. 1998)) (emph. added); see 29 C.F.R. § 1614.301(a) (employee who filed a grievance "may not thereafter file a complaint on the same matter... irrespective... of whether the grievance has raised an issue of discrimination") (emph. added). Thus, to the extent that plaintiff contends that the grievance and Complaint "must have included the same, identical topics" to be considered the "same matter, " see Pl.'s Resp. Br. 18 (emph. added), including the legal theory presented, such as claims of discrimination, plaintiff is incorrect. See Ilgenfritz , 2010 WL 2978090, at *7 (quoting ...

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