United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that Defendant's
motion to dismiss be granted in part and denied in part. For
the reasons set forth below, the Court adopts the Report and
is a 58-year-old female employed as an administrative
specialist at the Navy's Space and Naval Warfare Systems
Center Atlantic ("SPAWAR"). Plaintiff has been
employed with SPA WAR at the Southeast Regional Office in
North Charleston, South Carolina since 1999. Plaintiff
alleges that, during the course of her employment with SPA
WAR, the she became aware of a large discrepancy in pay
between herself and younger co-workers who were assigned to
the same work. She filed a complaint with the SPAWAR Equal
Employment Opportunity ("EEO") Office regarding
this pay discrepancy in 2005, and later that year, SPAWAR
remedied the issue through a settlement agreement.
alleges that in 2007, when SPAWAR changed its performance and
pay systems, she again received a lower salary than younger
co-workers did, despite her successful performance ratings.
In addition to being denied equal pay, the plaintiff alleges
that she has continually been denied the opportunity to
advance within the Post Award Admin Branch of the Contract
Division at SPA WAR, and that, although the plaintiff is a
military veteran with over 25 years of civil service, she has
never been granted any of the promotions that she has applied
for within the department. In October 2012, Plaintiff
received a performance evaluation that reflected a lower
performance award than similarly situated younger employees.
She alleges that at that time she became aware of SPA WAR
management actions that reflected an ongoing policy of hiring
younger employees into the Contract Division at a higher
salary than Plaintiffs for the performance of the same work,
with the aim of lowering the average age of employees in the
Division. On November 15, 2012, Plaintiff was reassigned to a
lower-level position within the Task Order Branch. Although
the plaintiff did not suffer a change in salary or benefits,
she alleges that assignment was a demotion because of the
loss of possibility of promotion and she alleges she was
demoted in retaliation for her prior EEO complaint.
filed a formal complaint of discrimination with SPA WAR's
EEO Office on May 8, 2013, which alleged age discrimination
and retaliation. The agency thereafter conducted an
investigation. On June 23, 2014, Plaintiff requested a
hearing and decision from an Equal Employment Opportunity
Commission ("EEOC") Administrative Judge. On June
10, 2015, the defending agency moved for summary, which the
Administrative Judge granted on March 25, 2016. The
Department of the Navy Office issued its final order on May
10, 2016, which implemented the Administrative Judge's
decision to dismiss Plaintiffs discrimination complaint.
then filed the present action against Defendant on June 21,
2016, alleging violations of Title VII of the Civil Rights
Act of 1964 and the Age Discrimination in Employment Act. On
September 13, 2016, Defendant moved to dismiss the complaint.
On June 1, 2017, the Magistrate Judge recommending granting
in part and denying in part the motion to dismiss. Plaintiff
filed no objections to the Report and Recommendation.
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted), and this Court is not required
to give any explanation for adopting the recommendation of
the Magistrate Judge, Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
Motion to Dismiss Under Rule 12(b)(1)
motion to dismiss for lack of subject-matter jurisdiction
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure challenges the jurisdiction of a court to
adjudicate the matter before it. Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006). A challenge to
subject-matter jurisdiction may contend either 1) that the
complaint fails to allege facts sufficient to establish
subject matter jurisdiction or 2) "that the
jurisdictional allegations of the complaint [are] not
true." Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). Where the sufficiency of the jurisdictional
allegations in the complaint is challenged facially,
"the facts alleged in the complaint are taken as true,
and the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction."
Kerns v. United States, 585 F.3d 187, 192 (2009).
If, however the defendant contends "that the
jurisdictional allegations of the complaint [are] not true,
" the plaintiff bears the burden to prove facts
establishing jurisdiction and the district court may
"decide disputed issues of fact." Id. In
that case, because the plaintiffs allegations are not
presumed true, "the court should resolve the relevant
factual disputes only after appropriate discovery."
24th Senatorial Dist. Republican Comm. v. Alcorn,
820 F.3d 624, 629 (4th Cir. 2016). And where "the
jurisdictional facts and the facts central to a tort claim
are inextricably intertwined, " so that a challenge to
the truth of the jurisdictional facts indirectly challenges
the plaintiffs claims on the merits, "the trial court
should ordinarily assume jurisdiction and proceed to the
intertwined merits issues." Kerns, 585 F.3 at
Motion to Dismiss Under 12(b)(6)
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses. . . . Our inquiry
then is limited to whether the allegations constitute 'a
short and plain statement of the claim showing that the
pleader is entitled to relief" Republican Party of
N.C. v. Martin,980 F.2d 943, 952 (4th Cir. 1992)
(quotation marks and citation omitted). In a Rule 12(b)(6)
motion, the Court is obligated to "assume the truth of
all facts alleged in the complaint and the existence of any
fact that can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship,213 F.3d 175, 180 (4th Cir. ...