In the United States Court of Federal Claims
No. 13-995C
(Filed: January 12, 2015)
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) Claim under the Equal Pay Act, 29 U.S.C.
MARLENE JORDAN, ) § 206(d); motion to dismiss pursuant to
) RCFC 12(c) and 12(h)(2)(B); sufficiency
Plaintiff, ) of factual allegations for purposes of
) RCFC 8; motion to compel discovery
v. ) responses
)
UNITED STATES, )
)
Defendant. )
)
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Judith A. Lonnquist, Seattle, Washington, for plaintiff.
Joshua A. Mandlebaum, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman,
Jr., Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Joann M.
Putnam, Attorney, Office of Regional Counsel, United States Department of Transportation,
Renton, Washington.
OPINION AND ORDER
LETTOW, Judge.
This action was brought on December 16, 2013, by plaintiff, Marlene Jordan, under the
Equal Pay Act, 29 U.S.C. § 206(d), alleging gender-based discrimination in pay. Ms. Jordan is
employed by the Department of Transportation, Federal Aviation Administration (“FAA”), as a
Management and Program Analyst in Renton, Washington. Compl. ¶¶ 3, 4, ECF No. 1. The
government answered the complaint on February 14, 2014, averring that “[a]ny difference
between plaintiff’s salary and that of any comparable male employees is not due to plaintiff’s
sex, but is based upon a seniority system, a merit system, a system that measures earnings by
quantity or quality of production, or a factor or factors other than sex.” Answer ¶ 15, ECF No. 5.
For a number of months, the parties undertook discovery in accord with a scheduling
order issued on April 4, 2014, ECF No. 7, and a protective order issued on May 20, 2014, ECF
No. 10. The discovery was conducted in parallel with proceedings in a related case that had been
filed three days after the instant action, Jordan v. Foxx, No. 2:13-cv-02280-RSM (W.D. Wash.
filed Dec. 19, 2013).1 In the district court case, Ms. Jordan invoked the Civil Rights Act of 1964,
Title VII, as amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261,
§ 11, 86 Stat. 111, the Civil Rights Act of 1991, Pub. L. No. 102-166, § 114, 105 Stat. 1079, and
the Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 5(c)(2), 123 Stat. 7 (codified at 42
U.S.C. § 2000e-16), to seek relief from discrimination and retaliation based on sex (female) and
race (African-American).2
Notwithstanding these trial-preparatory proceedings, the government on August 28, 2014,
filed a motion to dismiss pursuant to Rules 12(c) and 12(h)(2)(B) of the Rules of the Court of
Federal Claims (“RCFC”), contending that Ms. Jordan’s complaint fails to allege sufficient facts
under RCFC 8 to state a viable claim for relief, but instead merely sets out a formulaic recitation
of the elements of an Equal Pay Act claim. Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 2, ECF No.
15. Ms. Jordan has opposed this motion and has cross-moved for leave to amend her complaint,
to compel production of documents, and for sanctions under RCFC 37. See Pl.’s Resp. in Opp’n
to Def.’s Mot. to Dismiss, Cross-Mot. for Leave to Am. Compl., and Cross-Mot. to Compel
Production of Documents, and for Sanctions under Rule 37 (“Pl.’s Cross-Mots.”), ECF No. 16.
After briefing and a hearing, the motion and cross-motions are ready for disposition. For the
reasons stated, the court denies the motion to dismiss, nonetheless grants plaintiff leave to file an
amended complaint, and denies plaintiff’s cross-motions to compel production of documents and
for sanctions.
BACKGROUND
Ms. Jordan is employed in “the FV-343-H Series, H-band pay grade” at the FAA’s
Service Center, Administrative Service Group, in Renton. Compl. ¶ 4. She alleges in her
complaint that one named male co-worker earned $20,679 more per year than she did as of
February 2012, and that four additionally named male employees occupying positions as H-band
Management and Program Analysts also earned a higher salary than she did. Compl. ¶ 5. She
coupled these allegations with the claim that she and the five named male co-workers “perform
equal work on jobs requiring equal skill, effort, and responsibility, and the jobs are performed
1
In 2012 and 2013, Ms. Jordan filed complaints with the FAA’s Office of Civil Rights
alleging discrimination based on race and sex and retaliation based on prior EEO activity.
Compl. in Jordan v. Foxx, ¶¶ 17, 18. In due course, those allegations were presented to the
Equal Employment Opportunity Commission, which accepted the complaints for hearing by an
administrative law judge, but no such hearings were held. Id. In reliance on 42 U.S.C. § 2000e-
5, Ms. Jordan subsequently filed her complaint in Jordan v. Foxx, which remains pending before
the District Court for the Western District of Washington. Trial in that case is scheduled to
commence on July 6, 2015.
2
Parallel discovery was and is appropriate because “[a] discrimination claim for unequal
pay under Title VII . . . is generally analyzed under the same standards as [apply under] the
E[qual ]P[ay ]A[ct], with the exception that intentional discrimination is required under Title
VII.” Hughes v. Xerox Corp., No. 12-cv-6406, 2014 WL 3955263, at *10 (W.D.N.Y. Aug. 13,
2014) (citing Tomka v. Sieler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other
grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).
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under similar working conditions.” Compl. ¶ 6. Ms. Jordan avers that “[t]he differential rate of
pay was not part of or occasioned by a seniority system, merit system[,] a system based on
quantity or quality of production, or upon a legitimate ‘factor other than sex.’” Id.
Prior to filing its motion to dismiss, on August 18, 2014, the government supplied
detailed responses to plaintiff’s first interrogatories, providing names of ten male employees who
had or had held positions as Management and Program Analysts, Series 343, Grade H, at any
time from December 2010 to the present. See Pl.’s Cross-Mots., Attach. Decl. of Katherine
Cameron (Sept. 8, 2014), Ex. B (Def.’s Resp. to Pl.’s . . . First Three Interrogs.), at 2, ECF No.
16-1. The government’s responses also described in reasonably comprehensive terms the
operation of the FAA’s core compensation system, which uses “pay bands” or ranges of pay,
adjusted through consideration of a number of factors, to set a particular employee’s salary. Id.
at 3-6.
ANALYSIS
A. The Government’s Motion to Dismiss
RCFC 12(h)(2) allows the defense of “[f]ailure to state a claim upon which relief can be
granted” to be raised by a motion under RCFC 12(c). RCFC 12(h)(2)(B); see TigerSwan, Inc. v.
United States, 110 Fed. Cl. 336, 339 n.1 (2013). Notably, the government did not in its answer
assert the defense of failure to state a claim upon which relief can be granted. See Answer at 3
(stating three affirmative defenses, none of which consisted of the contention that plaintiff’s
complaint failed to state a viable claim). As a consequence, the government was barred from
moving for dismissal pursuant to RCFC 12(b)(6). See RCFC 12(b) (“A motion asserting any of
these defenses must be made before pleading if a responsive pleading is allowed.”). RCFC
12(h)(2)(B) nonetheless preserves the government’s ability to assert the defense via a motion for
judgment on the pleadings pursuant to RCFC 12(c), after it files its answer.
The legal bases for a motion under RCFC 12(c) are the same as those for a motion to
dismiss pursuant to RCFC 12(b)(6). See Xianli Zhang v. United States, 640 F.3d 1358, 1364
(Fed. Cir. 2011); Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009). A motion to
dismiss under RCFC 12(b)(6) or 12(c) will be granted if the facts alleged in the complaint do not
entitle the plaintiff to a legal remedy. See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.
Cir. 2002).
In this instance, the government challenges the sufficiency of plaintiff’s pleading of
details underlying her claim. In accord with RCFC 8, the complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(2). Rule 8
does not require “detailed factual allegations,” but does demand more than “unadorned, the-
defendant-unlawfully-harmed-me accusation[s].” Ashcraft v. Iqbal, 556 U.S. 662, 678 (2009).
Allegations in a complaint need to “raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In evaluating the allegations, the court is
“obligated to assume all factual allegations to be true and to draw all reasonable inferences in
plaintiff’s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A complaint will
survive a motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to ‘state a
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claim to relief that is plausible on its face.’” Bussie v. United States, 96 Fed. Cl. 89, 95 (2011),
aff’d, 443 Fed. Appx. 542 (Fed. Cir. 2011) (quoting Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
570). Unlike factual allegations, however, legal conclusions and “[t]hreadbare recitals of the
elements of a cause of action” are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678.
Once the court excises any conclusory or formulaic components of a plaintiff’s complaint, the
court can determine whether the remaining factual allegations in the complaint “plausibly
suggest an entitlement to relief.” Id. at 681. In determining whether a plaintiff has pled adequate
facts such that the court may infer that her entitlement to relief is plausible, the court must “draw
on its judicial experience and common sense.” Id. at 679.
In the government’s view, “[t]he complaint offers no factual support for the assertion that
the identified males, or other male colleagues of Ms. Jordan, perform equal work on jobs
requiring equal skill, effort[,] and responsibility, under similar working conditions.” Def.’s Mot.
at 2. The government equates the allegations in the complaint to “a formulaic recitation of the
elements of a cause of action.” Id. (quoting Twombly, 550 U.S. at 555, and citing Hughes v.
Xerox Corp., 2014 WL 3955263, and Wade v. Morton Bldgs., Inc., No. 09-1255, 2010 WL
378508, at *6 (C.D. Ill. Jan. 27, 2010)).
Ms. Jordan emphasizes that the legal ground for her claim, the Equal Pay Act, 29 U.S.C.
§ 206(d), prohibits discrimination in pay based on sex for performing equal work. She contends
that her complaint lays out a plausible claim for violation of this criterion by factually describing
the comparable males’ position, duties, and pay. Pl.’s Cross-Mots. at 8. The complaint lists “by
name five of her male co-workers at her work site who are paid higher salaries than Ms. Jordan
for performing work in the same position, pay grade, and, therefore, job description and
responsibilities.” Id. (emphasis omitted). She avers that these details provide ample notice to the
government of the nature of her claim and readily distinguish her case from others in which such
details were omitted. She points out that the court in Wade v. Morton Buildings determined that
the complaint’s allegations of violation of the Equal Pay Act “fail[ed] to give fair notice because
they g[a]ve [d]efendant no hint of the identity of the comparable male employee or his position.
Defendant [wa]s left to guess which male employee plaintiff believe[d] was paid more for equal
work.” Pl.’s Cross-Mot. at 8 (quoting Wade, 2010 WL 378508, at *6). She notes that the court
in Wade considered that in an action under the Equal Pay Act, “[w]ithout some description of the
comparable male’s position and duties, as compared to [p]laintiff’s duties, no inference of
plausibility arises to support her conclusion that the work was equal,” although a plaintiff “does
not necessarily need to identify specific names and salaries.” Id. (quoting Wade, 2010 WL
378508, at *6).
Ms. Jordan similarly resists the government’s invocation of Hughes v. Xerox Corp. on the
ground that the factual allegations in her complaint are more detailed than those at issue in that
case. Hughes also was a case brought under the Equal Pay Act, and the relevant factual
allegation stated that “[s]ince about 2006, [p]laintiff was paid less than similarly-situated males
for equal work on jobs that required equal skill, effort, and responsibility.” Hughes, 2014 WL
3955263, at *10. The court found this allegation insufficient under Fed. R. Civ. P. 8 because the
complaint neither identified the allegedly similarly situated males by position nor offered
supporting facts for the allegation that the female plaintiff was paid less. Id.
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In its reply, the government acknowledges that plaintiff and the five male employees
named in Ms. Jordan’s complaint have the same job titles, pay band, and place of work, but it
objects that “[t]itles do not fill the gap in the complaint because actual duties, rather than titles,
control an Equal Pay Act analysis.” Def.’s Reply at 2, ECF No. 20. In support, the government
cites Merillat v. Metal Spinners, Inc., 470 F.3d 685, 695 (7th Cir. 2006) (“We look to the actual
job duties performed by each employee, not to his or her job description or title.”); Beck-Wilson
v. Principi, 441 F.3d 353, 362 (6th Cir. 2006) (“In determining whether a comparator is
appropriate for the purposes of an E[qual ]P[ay ]A[ct] claim, our focus is on actual job
requirements and duties, rather than job classification or titles.”); and Lawrence v. CNF Transp.,
Inc., 340 F.3d 486, 492 (8th Cir. 2003) (“Application of the Equal Pay Act depends not on job
titles or classifications but on the actual requirements and performance of the job.”). Id. The
government additionally relies on a regulation adopted by the EEOC that job content is
controlling for purposes of the Equal Pay Act:
(e) Job content controlling. Application of the equal pay standard is
not dependent on job classifications or titles but depends rather on
actual job requirements and performance. For example, the fact that
jobs performed by male and female employees may have the same
total point value under an evaluation system in use by the employer
does not in itself mean that the jobs concerned are equal according to
the terms of the statute. Conversely, although the point values
allocated to jobs may add up to unequal totals, it does not necessarily
follow that the work being performed in such jobs is unequal when
the statutory tests of the equal pay standard are applied. Job titles are
frequently of such a general nature as to provide very little guidance
in determining the application of the equal pay standard. For
example, the job title “clerk” may be applied to employees who
perform a variety of duties so dissimilar as to place many of them
beyond the scope of comparison under the Act. Similarly, jobs
included under the title “stock clerk” may include an employee of one
sex who spends all or most of his or her working hours in shifting and
moving goods in the establishment whereas another employee, of the
opposite sex, may also be described as a “stock clerk” but be engaged
entirely in checking inventory. In the case of jobs identified by the
general title “retail clerk,” the facts may show that equal skill, effort,
and responsibility are required in the jobs of male and female
employees notwithstanding that they are engaged in selling different
kinds of merchandise. In all such situations, the application of the
equal pay standard will have to be determined by applying the terms
of the Act the specific facts involved.
29 C.F.R. § 1620.13(e) (emphasis added). This interpretative regulation is entitled to
considerable weight, although it is not controlling. See Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 693 n.7 (7th Cir. 1998) (“The EEOC’s guidelines, ‘while not controlling upon courts
by reason of their authority, do constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance.’”) (quoting Smith v. Midland Brake, Inc.,
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138 F.3d 1304, 1308 n.2 (10th Cir. 1998) (in turn quoting Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65 (1986))); Weinand v. Department of Veterans Affairs of the State of Ill., No. 05-3232,
2006 WL 1319809, at *3 (N.D. Ill. May 15, 2006). This argument by the government is not
persuasive, however, because the job classification of Ms. Jordan and her male co-workers is not
one of a “general nature,” as described in the EEOC’s regulation. Instead, it appears to be quite
specific as applied to the Administrative Service Center in the FAA’s Service Group in Renton.
At least for the purposes of the government’s motion to dismiss predicated on RCFC 8,
Ms. Jordan’s reference to a specific, not general, job description and set of duties is sufficient.
Here, besides identifying allegedly comparable male co-workers by name, specific job
classification, and work site, and listing one higher salary, Ms. Jordan also recited in her
complaint her prior EEOC charges. Those charges were incorporated into the complaint by
reference and can be considered by the court as matters fleshing out Ms. Jordan’s claim. See
Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 436 (E.D.N.Y. 2010) (ruling that the court
could consider state human rights and EEOC decisions and filings in connection with a motion to
dismiss); Byrne v. Telesecor Res. Grp., Inc., No. 04-cv-76S, 2005 WL 464941, at *4 (W.D.N.Y.
Feb. 25, 2005), aff’d, 339 Fed. Appx. 13 (2d Cir. 2009) (taking plaintiff’s EEOC charge into
account in considering a motion to dismiss where the charge was expressly referenced in the
complaint); see also Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (holding that a district court
had properly converted a motion to dismiss by defendants to a motion for summary judgment,
but also commenting that on a motion filed under Fed. R. Civ. P. 12(c), a trial court may review
any document incorporated by reference in one of the pleadings).
In these circumstances, Ms. Jordan has satisfied RCFC 8 by providing “a short and plain
statement of the claim showing that [she] is entitled to relief.” RCFC 8(a)(2). The detailed
allegations in the complaint more than suffice to recite a claim that is “plausible on its face.”
Iqbal, 556 U.S. at 578 (quoting Twombly, 550 U.S. at 570). The government’s motion to dismiss
accordingly is unavailing. The Supreme Court’s decisions in Iqbal and Twombly required factual
plausibility in allegations rather than formulaic recitals, but they did not convert Rule 8 into a
command that a complaint must constitute a virtual pretrial memorandum of fact and law for
plaintiff. See Petro-Hunt, L.L.C. v. United States, 90 Fed. Cl. 51, 71 (2009) (cautioning against
the government’s attempt to “collapse discovery, summary judgment[,] and trial into the
pleading stages of a case”) (citing Iqbal, 556 U.S. at 679, Twombly, 550 U.S. at 555).
B. Leave to Amend Plaintiff’s Complaint
As a conditional matter, Ms. Jordan seeks leave to amend her complaint if the court were
to find the complaint insufficient under RCFC 8. See Pl.’s Cross-Mots. at 10-11. The
government has not responded to this request. Because the court has found Ms. Jordan’s
complaint to be sufficient for purposes of RCFC 8, guided by Iqbal and Twombly, amendment of
that complaint is not necessary. Nonetheless, the court grants Ms. Jordan leave to amend her
complaint if she chooses to do so.
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C. Motion to Compel
Plaintiff’s motion to compel production of documents is premised on the timing
provisions of RCFC 34(b)(2)(A). That Rule specifies that “[t]he party to whom the request [for
production] is directed must respond in writing within 30 days after being served.” RCFC
34(b)(2)(A). This time for responding is subject to adjustment, either by stipulation or by an
order of the court. Id. Plaintiff contends that the government has been dilatory in its search for,
and production of, documents responsive to its requests. Pl.’s Cross-Mots. at 11-12. The
government resists this cross-motion on the grounds that the document production was
complicated, that it produced documents in three separate phases as it located relevant records,
and that to the best of counsel’s knowledge, it now has produced all of the requested materials.
Def.’s Resp. to Pl.’s Mot. to Compel Produc. of Docs. and Mot. for Sanctions (“Def.’s Resp.”) at
2-3, ECF No. 21. The government also objects that plaintiff’s counsel conferred by e-mail, not
telephone, in advance of filing the motion to compel, id. at 4-5, and that the communications
were not designed genuinely to avoid judicial intervention, id. at 6 (citing AG-Innovations, Inc.
v. United States, 82 Fed. Cl. 69, 79-80 (2008)). Plaintiff replies that the government has engaged
in “an ongoing pattern of delay” in the discovery for this case, even though discovery and other
trial preparatory steps are reportedly moving relatively smoothly in the parallel litigation in
district court. Pl.’s Reply in Support of Her Mot. to Compel Discovery at 2, ECF No. 23.
Based upon the parties’ representations and acknowledgements that the disputed
document production has largely been accomplished, there is no basis for the court to intervene
by granting plaintiff’s motion to compel. That motion is moot for all practical purposes.
D. Motion for Sanctions
Rule 37 provides that a party may seek sanctions for the opposing party’s refusal to
cooperate in discovery. Specifically, if a motion to compel is granted, the court must require the
opposing party or attorney, or both, to pay the movant’s “reasonable expenses incurred in
making the motion, including attorney’s fees,” except where the movant did not in good faith
endeavor to obtain the discovery without court action, or where the opposing party’s actions
were “substantially justified,” or where circumstances make an award unjust. RCFC
37(a)(5)(A). See Council for Tribal Emp’t Rights v. United States, 110 Fed. Cl. 244, 248-50
(2013). If the motion to compel is denied, the court may require the movant or the movant’s
attorney to pay reasonable expenses absent substantial justification or where circumstances make
an award unjust. RCFC 37(a)(5)(B). If the motion is granted in part and denied in part, the court
may apportion reasonable expenses. RCFC 37(a)(5)(C).
In this instance, an award of expenses under Rule 37(a)(5) is not appropriate. After the
motion to compel was filed, the parties were able to obviate their impasse and complete
production of requested documents.
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CONCLUSION
For the reasons stated, defendant’s motion to dismiss is DENIED, plaintiff’s cross-
motion for leave to file an amended complaint is nonetheless GRANTED, plaintiff’s cross-
motion to compel is DENIED as moot, and plaintiff’s motion for sanctions is DENIED.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
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