455 F.Supp.3d 693
N.D. Ill.2020Background
- Alison Hardiman, an African American woman, was hired by the EEOC in 2007 and alleges she was selected for a GS-11/12 IT Specialist promotion but was not notified and has been paid at GS-9 rate.
- She alleges race- and sex-based discrimination: less pay, fewer personnel and training supports, and fewer advancement opportunities compared with a prior White male GS-11/12 coworker.
- Hardiman filed an internal EEOC charge; the agency issued a Final Order rejecting her charge and a right-to-sue notice; she filed this suit on August 21, 2018 against Victoria Lipnic in her capacity as EEOC Chair.
- The EEOC moved to dismiss under Fed. R. Civ. P. 12(b)(1) (jurisdiction) and 12(b)(6) (failure to state a claim).
- The court evaluated sovereign-immunity/Tucker Act limits for an Equal Pay Act claim, whether § 1981 and the No FEAR Act provide money-mandating remedies against the federal government, and procedural defenses to a Title VII claim (EEO counseling within 45 days and 90-day filing after right-to-sue).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Pay Act (EPA) claim against EEOC/Chair | Hardiman alleges pay disparity from concealed promotion; seeks relief under EPA | United States has not waived sovereign immunity for EPA claims in district court absent Tucker Act jurisdiction; plaintiff did not plead amount to keep claim under Little Tucker Act | Dismissed for lack of subject-matter jurisdiction (EPA claim); dismissal without prejudice and plaintiff may amend to waive >$10,000 to invoke district court jurisdiction under Little Tucker Act |
| 42 U.S.C. § 1981 claim by federal employee | Hardiman asserts § 1981 violation for race discrimination | Federal employees' remedies are governed exclusively by Title VII; § 1981 does not provide a remedy against the federal government | Dismissed with prejudice for lack of jurisdiction/substantive remedy under § 1981 |
| No FEAR Act private right / money-mandating claim | Hardiman cites No FEAR Act as basis for relief | No FEAR Act does not create a private right of action or money-mandating remedy | Dismissed with prejudice (no private right of action; cannot state a claim) |
| Title VII procedural defenses: 45-day EEO counseling and 90-day suit filing | Hardiman: complaint need not plead counseling/receipt dates; she attached Final Order/right-to-sue and alleges timely filing | EEOC: Hardiman failed to contact EEO counselor within 45 days and filed suit one day late (91 days) | Court refused to resolve exhaustion at pleading stage (45-day rule is an affirmative defense; plaintiff did not plead herself out). Timeliness: presumed receipt 5 days after mailing makes suit timely; e-mail receipt presumption not established, so suit deemed timely. Title VII claim survives at this stage |
Key Cases Cited
- United States v. Mitchell, 463 U.S. 206 (Tucker Act/sovereign immunity principles)
- United States v. Testan, 424 U.S. 392 (Tucker Act jurisdiction requires a substantive money-mandating statute)
- Brown v. Gen. Servs. Admin., 425 U.S. 820 (§ 1981 does not furnish remedy against federal employment; Title VII is exclusive)
- Loeffler v. Frank, 486 U.S. 549 (Title VII provides cause of action and waiver of sovereign immunity for federal employees)
- Ashcroft v. Iqbal, 556 U.S. 662 (facial plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be more than labels and conclusions)
- Lapka v. Chertoff, 517 F.3d 974 (45-day EEO counseling requirement is an affirmative defense/statute of limitations)
- U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (statute of limitations is an affirmative defense not to be resolved on the pleadings absent admission)
- Loyd v. Sullivan, 882 F.2d 218 (presumption that mailed documents are received five days after mailing)