Wiggins v. Powell

Full title: STANLEY P. WIGGINS, Plaintiff, v. MICHAEL POWELL, Chairman Federal…

Court: United States District Court, D. Columbia

Date published: Mar 7, 2005

Civil Action No. 02-1774 (CKK) (D.D.C. Mar. 7, 2005)

Opinion

Civil Action No. 02-1774 (CKK).

March 7, 2005

MEMORANDUM OPINION

COLLEEN KOTELLY, District Judge

Plaintiff, Stanley P. Wiggins, appears before the Court alleging violations of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"), Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination Employment Act, 29 U.S.C. § 633(a) ("ADEA"), by his employer, Michael Powell, Chairman of the Federal Communications Commission ("FCC" or "Defendant"), acting in his official capacity. Plaintiff complains of non-selection, and age and gender discrimination, which he alleges has kept him at a lower pay rate than he has merited during his employment at the FCC. Defendant moves to dismiss, or, alternatively, moves for summary judgment or summary adjudication, pursuant to Rules 12(b)(1), (b)(6), and 56 of the Federal Rules of Civil Procedure. Defendant claims that Plaintiff has not exhausted his administrative remedies and the Court does not have jurisdiction over some of the claims. After reviewing the parties' briefs and relevant law, the Court shall grant-in-part and deny-in-part Defendant's motion for dismissal and shall deny Defendant's motion for summary judgment or summary adjudication.¹

1 The Court points out that, in future motions and filings with this Court, the parties should not continue their practice of referring to and attempting to incorporate earlier motions, previous exhibits, and prior responses. The Court should not have to wade through various sets of pleadings in order to ferret out a party's exact argument. Rather, all arguments that a party wishes the Court to consider should be contained in one document, and all documents referred to in that document should be attached as an exhibit.

I: BACKGROUND

The parties have recounted the tortured, rather circuitous procedural background of this case in some detail in their briefs, which the Court will only briefly summarize here. Although Plaintiff originally filed his complaint in this action on September 9, 2002, it has taken this case nearly two calendar years to reach the stage where Defendant's Motion to Dismiss or, in the Alternative, For Summary Judgment has been fully briefed by both parties and is ripe for the Court's consideration. More prompt adjudication of this case was impossible due to Plaintiff's propensity for amending his original complaint, see Wiggins v. Powell, Civ. No. 02-1774 [Docket Entries 3, 17, 22, 24, 29] (Plaintiff is now on his Fifth Amended Complaint), and Defendant's penchant for requesting extensions, id. [Docket Entries 6, 12, 15, 18, 34, 36, 38, 44]. While the parties bicker at some length regarding the allocation of fault for this delay, the Court sees no reason to belabor the point. Rather, the more productive route is to deal with the merits of Defendant's present motion and Plaintiff's Fifth Amended Complaint.

Plaintiff, Stanley P. Wiggins, has been employed by Defendant for more than 27 years, and has served as a Grade 14 attorney for more than 22 years. Fifth Am. Compl. ("Am. Compl.") ¶ 4. However, the allegations in his Fifth Amended Complaint relate to the period of his FCC tenure from roughly 1999, see id. ("[f]or at least three years preceding the filing of this complaint. . . ."), to his non-selection for Vacancy Announcement Number ("VAN") 03-017DF, a GS-15 Attorney-Advisor Position in the Policy Division of the FCC's Wireless Telecommunications Bureau ("WTB"), in March 2003, id. ¶¶ 13-14. Plaintiff's Fifth Amended Complaint contains three distinct counts. First, Plaintiff asserts that Defendant has violated the EPA by failing to pay Plaintiff a wage commensurate with GS-15 status when he has been performing "substantially equal duties" to (1) "three or more female attorneys at his agency who have been classified and paid at the grade 15 level," (2) "a younger male grade 15 attorney," and (3) "similarly situated female co-workers performing essentially the same or lesser work." Id. ¶¶ 4, 14, 19. Second, Plaintiff contends that he suffered age discrimination in violation of the ADEA at the hands of Defendant when Plaintiff, who is over the age of forty, was passed over for a competitive promotion to VAN 03-017DF in March 2003 and when Plaintiff was not paid a GS-15 salary despite his workload and responsibilities. Id. ¶¶ 11, 13, 14. Third, Plaintiff asserts that Defendant violated Title VII by discriminating against him on the basis of his gender in both his diminished pay level and his non-selection to VAN 03-017DF. Id. ¶ 19.

When unraveled, Plaintiff's Fifth Amended Complaint consists of essentially two overarching "employment actions": (1) unequal pay for equal work; and (2) non-selection for a GS-15 attorney position at the WTB. The Court will deal with the facts relating to both employment actions in sequence.

A. Unequal Pay for Equal Work

Plaintiff pursued the notion that he was being paid unequally for comparable work initially by requesting a desk audit, and then filing a grievance to challenge the results of his desk audit and classification review. See Am. Compl. ¶ 14 ("Plaintiff has brought the specifics of this age discrimination in pay to the attention of his supervisors and agency management and requested relief in the form of an accretion of duties promotion to grade 15."). Plaintiff requested and received a desk audit in September, 2000. Def.'s Stmt. of Mat. Facts as to Which There is No Genuine Dispute ("Def.'s Stmt.") Issue I ¶ 2; Pl.'s Response to Def.'s Stmt. ("Pl.'s Response") Issue I ¶ 2; Def.'s Opp'n to Pl.'s Mot. for Leave to File Second Am. Compl. ("Def.'s Opp'n to Leave"), Ex. 2 (Position Classification Statement) at 1 ("On September 6, 2000, Mr. Stanley Wiggins forwarded a request for a classification review of his position, Attorney-Advisor, GS-905-14, and upgrading to Attorney-Advisor, GS-905-15."). On November 16, 2000, Plaintiff was notified that the desk audit determined that his position was properly classified at the GS-14 level and that he would not be promoted. Def.'s Stmt. Issue I ¶ 3; Pl.'s Response Issue I ¶ 3; Def.'s Opp'n to Leave, Ex. 1 (Classification Appeal Decision by Managing Director Andrew S. Fishel).

Upon learning of the November 16, 2000, denial of his reclassification request, Plaintiff composed an Interoffice Memorandum to Tom Surgrue on December 28, 2000. Def.'s Opp'n to Leave, Ex. 3 (Memorandum from Plaintiff to Surgrue). In his memo to Mr. Surgrue, Plaintiff noted "the lateness of the hour" created by certain administrative deadlines; he acknowledged, "I face a December 29 deadline for initiating the internal EEO complaint process if I wish to preserve the option of a gender and age discrimination complaint. The EEO filing deadline is determined by the Managing Director's November 16 action, which denied my reclassification request on the basis of a desk audit." Id. at 1; see also Pl.'s Response Issue I ¶ 5 ("Admitted that plaintiff had some awareness of EEO deadlines in December 2000 as indicated in the cited exhibits."). Plaintiff wrote to Mr. Surgrue, "I feel compelled to advise you, as a matter of courtesy, that I am preparing an appeal of the Managing Director's determination and . . . will also retain outside counsel. . . . I would prefer to resolve this situation within the agency, and there are several EEO stages before the formal complaint process." Id. at 2. In addition to the fact that Plaintiff felt he was "supervising GS-15 colleagues" and "meeting with representatives from other Bureaus and Offices who invariably outranked him" despite his GS-14 status, Plaintiff made clear to Mr. Surgrue that he felt that his responsibilities far outweighed a GS-15 female attorney who "occupied the Deputy Division Chief's position" "[d]uring the period at issue." Id. According to Plaintiff, "this continuing disparity . . . constitutes unlawful gender discrimination." Id.; but see Pl.'s Reply to Def.'s Opp'n to Leave, Ex. 1 (Decl. of Stanley P. Wiggins) ¶ 2 ("In my grievance proceeding involving my desk audit, I did not raise any issues of age or gender discrimination.").

Apparently having not received the result that he desired after his Interoffice Memorandum to Tom Surgrue, Plaintiff submitted an Interoffice Memorandum on April 6, 2001, to Andrew S. Fishel regarding his November 16, 2000 Classification Appeal Decision vis-à-vis Plaintiff. Def.'s Opp'n to Leave, Ex. 4 (Memo from Plaintiff to Fishel). In his memorandum to Mr. Fishel, Plaintiff requested a second, "curative" desk audit regarding his attempt to be reclassified as a GS-15. Id. at 3. While Plaintiff had previously focused mainly on the fact that he was receiving unequal pay for equal work and suffering from gender discrimination, he now explicitly expanded his internal complaint to age discrimination. See id. at 1 ("I notified you on December 28, 2000, of my intention to preserve my rights regarding possible gender and age discrimination actions arising from my personnel situation."; "The immediate instance of continuing age discrimination, considered below, is your memorandum of November 16, 2000, which denied my request for reclassification at the GS-15 level."), at 2 ("Because these circumstances support the filing of grievances, aside from the initiation of age and gender discrimination litigation, . . . ."); at 2-3 ("I also understand that while a pure age discrimination action may be brought directly in federal court, actions involving other forms of discrimination require that administrative remedies first be exhausted."). Plaintiff's memorandum to Mr. Fishel also reflected his continued awareness of the deadlines that he faced, as Plaintiff himself described: "I further understand that notice of intention to pursue the litigation remedy for discrimination must be provided [to] the EEOC within six months of the action complained of . . . [and therefore] notice of intention to initiate a suit alleging age discrimination must be submitted to the Equal Opportunity Commission by May 16, 2001." Id. at 3. Plaintiff concluded by suggesting that while he did not desire litigation, "[y]our refusal to undertake a second desk audit would also, in my view, reinforce the pattern of discrimination over the last several years, and call into question the credibility of the grievance process." Id. at 2.

Plaintiff's final memorandum, prior to seeking aid with the National Treasury Employees Union ("NTEU"), was an Interoffice Memorandum to Marsha McBride on April 17, 2001. Def.'s Opp'n to Leave, Ex. 5 (Memo from Plaintiff to McBride). Plaintiff once again noted that administrative deadlines for his claim were approaching. Id. at 1 ("The deadline for notifying the EEOC of litigation based on age discrimination is now a month off. . . ."). However, rather than focus on age discrimination in his memorandum to Ms. McBride, Plaintiff focused on procedural deficiencies with his reclassification review — namely, a biased, inadequate interview and a misapplication of Office of Personnel Management ("OPM") classification standards — that he contended violated the collective bargaining agreement between the FCC and the NTEU. Id. at 1-2; see also Pl.'s Reply to Def.'s Opp'n to Leave, Ex. 1 (Decl. of Stanley P. Wiggins) ¶ 3 ("My grievance proceeding was based upon an unfair labor practice under the collective bargaining agreement between my agency and the union.").

Having no success with Ms. McBride, the NTEU filed a grievance on behalf of Plaintiff on June 18, 2001, relating to alleged procedural deficiencies in Plaintiff's reclassification review that apparently violated certain provisions of the Basic Negotiated Agreement ("BNA"). Def.'s Stmt. Issue II ¶¶ 2-4; Pl.'s Response Issue II ¶¶ 2-4; Def.'s Opp'n to Leave, Ex. 6 (NTEU Chapter 209 Grievance). In a decision authored on January 17, 2002, Anna Gomez, Deputy Bureau Chief, Internal Bureau of the FCC, denied Plaintiff's grievance as it related to alleged procedural deficiencies in the reclassification review process.² Def.'s Stmt. Issue II ¶ 5; Pl.'s Response Issue II ¶ 5; Def.'s Opp'n to Leave, Ex. 8 (Step 3 Grievance Decision). The NTEU declined to pursue arbitration relating to this claim. Def.'s Stmt. Issue II ¶ 6; Pl.'s Response Issue II ¶ 6. Plaintiff was aware of the appeals process but did not invoke it for the results of his desk audit. Def.'s Stmt. Issue II ¶ 7; Pl.'s Response Issue II ¶ 7; Def.'s Opp'n to Leave, Ex. 4 (Memo from Plaintiff to Fishel) at 1, n. 1 ("Appealing your action to the Office of Personnel Management is, in my view and that of others familiar with OPM practice, unlikely to result in an even-handed review of this matter.").

2 Plaintiff asserts that his grievance brought by the NTEU was ultimately invalid because (1) it was not timely filed under the BNA, and (2) position classification is actually excluded from the grievance procedure. Pl.'s Response Issue II ¶ 5 (citing Def.'s Opp'n to Leave, Ex. 8 (Step 3 Grievance Decision) at 1); Pl.'s Stmt. of Mat. Facts Still in Dispute ¶ 3.

Ultimately, after being denied pay at the GS-15 level in November, 2000, Plaintiff did not pursue a Title VII gender discrimination claim based on unequal pay until 2002. See Am. Compl. ¶ 17; Def.'s Stmt. Issue I ¶ 6; Pl.'s Response Issue I ¶ 6. Plaintiff notes that he "sought EEO counseling for sex discrimination in pay, as required by 29 C.F.R. Part 1614, particularly section 1614.105(a)(1). Plaintiff then filed, on or about November 19, 2002, a formal EEO complaint, alleging continuing sex discrimination in pay, pursuant to 29 C.F.R. § 1614.106(b)." Am. Compl. ¶ 17. While the parties have failed to attach this November 19, 2002, EEO complaint, Plaintiff does make reference to this complaint in a later EEO complaint that he filed on May 6, 2003, which related more directly to his non-selection for VAN 03-017DF.³ See Def.'s Mot. to Dismiss, Ex. 1 (Formal Complaint of Discrimination Dated 5/6/03); see also Def.'s Reply, Ex. 1 (Plaintiff's December 6, 2002, Clarification of his November 19, 2002, EEO Complaint). Indeed, in the May 6, 2003, complaint, Plaintiff notes that "[t]he age and genderbased discrimination asserted in my formal complaint of November 19, 2002, and further described in my supplement of December 6, 2002, continues unabated. I incorporate those documents and attachments by reference." Id. at 1. "In a letter dated March 10, 2003, the agency dismissed the November 19, 2002 complaint on the grounds that plaintiff was presently pursuing the same complaint in court or the same complaint was pursued under a grievance process." Am. Compl. ¶ 17.

3 Somewhat mysteriously, Plaintiff's Fifth Amended Complaint also makes reference to two other letters around this same time to the EEOC regarding "unequal pay for equal work" arising out of age and gender-based discrimination; however, it appears that the parties have failed to attach these two EEOC letters as exhibits to their filings. See Am. Compl. ¶ 14 ("Plaintiff has been the victim of discrimination (based upon age) in the form of non-payment for grade 15 level work, comparable to or at a higher level than the work of a younger male attorney, and non-selection for promotion to grade 15, in the defendant's agency, as set forth in the September 6, 2002 and March 7, 2003 letters to the Equal Employment Opportunity Commission from plaintiff's attorney."). The only reference to these letters in the parties' filings is in Defendant's Motion to Dismiss. See Def.'s Mot. to Dismiss at 21 ("Plaintiff failed to notify the EEOC of his intent to file the instant lawsuit, however, until September 2002 — nearly two years later.").
At most, given these "facts," it can be said that Plaintiff first contacted the EEOC regarding his allegation that he was receiving "unequal pay for equal work" because of age and gender discrimination sometime in September 2002, with a formal EEOC complaint filed on November 19, 2002.

While unequal pay for equal work due to age and gender discrimination was a focus of Plaintiff's attempted administrative remedy surrounding the November 2000 denial of his reclassification request, his Fifth Amended Complaint also reflects an alleged continuing problem of unequal pay, purportedly due to age and gender-based discrimination. See Pl.'s Reply to Def.'s Opp'n to Leave, Ex. 1 (Decl. of Stanley P. Wiggins) ¶ 4 ("My complaint in this court case is not based upon the results of my desk audit. It is based upon the agency's continuing practice of paying me less for equal work compared to women and a substantially younger male doing equal work to myself."). Plaintiff's Fifth Amended Complaint notes that he suffered unequal pay for equal work and has been discriminated "on the basis of his sex" "[f]or at least three years preceding the filing of this complaint." Am. Compl. ¶¶ 4, 7. Plaintiff's Fifth Amended Complaint alleges that "Plaintiff has repeatedly brought this to the attention of his supervisors and agency management and requested pay equity through an accretion of duties promotion." Id. ¶ 4. However, "the agency management has failed to take corrective action" and "[t]his disparity in pay is continuing and continues through the date of the filing of this complaint." Id. ¶¶ 5-6.

B. Non-Selection for VAN 03-017DF

The second "employment action" that is the focus of Plaintiff's Fifth Amended Complaint is his non-selection for VAN 03-017DF. See Am. Compl. ¶ 13. VAN 03-017DF was a vacancy announcement, advertised from November 25, 2002, through December 16, 2002, that sought FCC-wide applications to fill a GS-15 Attorney-Advisor position in the Policy Division of the FCC's Wireless Telecommunications Bureau. Def.'s Stmt. Issue III(B) ¶ 1; Pl.'s Response Issue III(B) ¶ 1; Def.'s Mot. to Dismiss, Ex. 2 (VAN 03-017DF). There were five stated evaluation criteria by which candidates applying for VAN 03-017DF were to be assessed: (1) knowledge of the wireless industry and the issues that affect it; (2) knowledge of internal FCC procedures, including coordination with other Bureau/Offices, circulation; (3) ability to write clearly, concisely, and in an organized manner; (4) ability to participate in long-term policy planning and the development of long-range goals and objectives of an organization; and (5) ability to interpret legal, technical, and policy issues, and to assimilate advice provided by multidisciplinary staff (e.g., engineers, analysts, and other attorneys). Def.'s Stmt. Issue III(B) ¶ 2; Pl.'s Response Issue III(B) ¶ 2; Def.'s Mot. to Dismiss, Ex. 2 (VAN 03-017DF) at 3.

Approximately seven FCC employees, including Plaintiff, applied for the position. Def.'s Stmt. Issue III(B) ¶ 3; Pl.'s Response Issue III(B) ¶ 3. Four of the applicants were female, and three of the applicants were male. Id. From the applications received, the FCC prepared two candidates lists: the merit promotion list, for current FCC employees most recently employed below the grade-level announced in the vacancy (i.e., below GS-15), and the non-competitive list, for current FCC employees employed at the grade-level advertised in the vacancy or who had previously held that grade. Id.; Def.'s Mot. to Dismiss, Ex. 3 (Non-Competitive Candidates List) Ex. 4 (Merit Promotion Candidates List). The merit promotion list consisted of four candidates: two males (including Plaintiff) and two females. Def.'s Stmt. Issue III(B) ¶ 4; Pl.'s Response Issue III(B) ¶ 4. The non-competitive list contained three candidates: one male and two females. Def.'s Stmt. Issue III(B) ¶ 5; Pl.'s Response Issue III(B) ¶ 5.

Ms. Blaise A. Scinto (female, DOB 2/21/63), Chief, Policy Division WTB, was the selecting official. Def.'s Stmt. Issue III(B) ¶ 6; Pl.'s Response Issue III(B) ¶ 6. Ms. Scinto, with Mr. Jared Carlson (male, DOB 5/7/69) and Mr. Joel Taubenblatt (male, DOB 5/22/70), both Deputy Chiefs in the Policy Division, interviewed each candidate. Def.'s Stmt. Issue III(B) ¶ 7; Pl.'s Response Issue III(B) ¶ 7. Mr. Carlson testified that each candidate listed on the two selection certificates was asked the same questions. Id. Plaintiff was interviewed on January 29, 2003, by the panel. Def.'s Mot. to Dismiss, Ex. 13 (Scinto's Interview Notes re: Candidates).

Ms. Scinto ultimately selected two candidates for the position: Ms. Melinda S. Littell (female, DOB 9/14/65) and Ms. Nese Guendelsberger (female, DOB 8/2/63).⁴ Def.'s Stmt. Issue III(B) ¶ 9; Pl.'s Response Issue III(B) ¶ 9. Ms. Littell, then a GS-14 Attorney-Advisor in WTB's Policy Division, was selected from the merit promotion list and promoted to the GS-15 level. Def.'s Stmt. Issue III(B) ¶ 10; Pl.'s Response Issue III(B) ¶ 10; Def.'s Mot. to Dismiss, Ex. 4 (Merit Promotion Candidates List). Ms. Guendelsberger, then a GS-15 Attorney-Advisor in the FCC's Wireline Competition Bureau ("WCB"), was selected from the non-competitive list and laterally transferred into the Policy Division. Def.'s Stmt. Issue III(B) ¶ 11; Pl.'s Response Issue III(B) ¶ 11; Def.'s Mot. to Dismiss, Ex. 3 (Non-Competitive Candidates List).

4 Apparently, Ms. Guendelsberger was actually the second choice from the noncompetitive list. Brad Lerner, a male, was Ms. Scinto's original selection from the noncompetitive list for the vacancy, but he declined the position. The position was then offered to Ms. Guendelsberger. Def.'s Mot. to Dismiss, Ex. 3 (Non-Competitive Candidates List) (noting that Mr. Lerner was selected and subsequently declined).

Both Ms. Scinto and Mr. Carlson testified to the qualifications of Ms. Littell and Ms. Guendelsberger for the position. Def.'s Stmt. Issue III(B) ¶¶ 13-15; Pl.'s Response Issue III(B) ¶¶ 13-15. Mr. Carlson testified that Ms. Littell had done good work and he knew her well. Def.'s Stmt. Issue III(B) ¶ 15; Pl.'s Response Issue III(B) ¶ 15. Mr. Carlson also testified that Plaintiff's writing was "not as fine as it could be [and] that was probably the biggest single . . . mark against him." Def.'s Stmt. Issue III(B) ¶ 16; Pl.'s Response Issue III(B) ¶ 16. Mr. Taubenblatt also testified as to Ms. Littell's and Ms. Guendelsberger's qualifications. Id. Plaintiff contests the reasons for selection proffered by the panel, and asserts that his "application materials were superior to the selectees' in both quality and quantity of experience." Pl.'s Response Issue III(B) at ¶¶ 13-17. Plaintiff further asserts the need to probe the asserted bases for selection in discovery in this matter before summary judgment may be granted. Id.

As far as the competitive list candidates' qualifications, Ms. Littell — ultimately selected by the Ms. Scinto — earned her J.D. from Georgetown University Law Center in 1990, where she served as Editor in Chief for the American Criminal Law Review. Def.'s Stmt. Issue III(B) ¶ 17; Pl.'s Response Issue III(B) ¶ 17; Def.'s Mot. to Dismiss, Ex. 7 (Littell Application). She served as an Attorney-Advisor in WTB's Policy Division beginning in 1996, with Ms. Scinto and Mr. Taubenblatt as her supervisors. Id. Her recent projects included drafting notices and orders and supervising staff members. Id. Prior to that, Ms. Littell worked in the FCC's Common Carrier Bureau, where she, inter alia, drafted orders, legal memoranda, and other documents pertaining to number portability provisions of the Telecommunications Act of 1996. Def.'s Stmt. Issue III(B) ¶ 18; Pl.'s Response Issue III(B) ¶ 18; Def.'s Mot. to Dismiss, Ex. 7 (Littel Application). Ms. Littell also worked in the FCC's Cable Services Bureau, where she drafted orders, legal memoranda, and other documents implementing the 1992 Cable Act. Def.'s Stmt. Issue III(B) ¶ 19; Pl.'s Response Issue III(B) ¶ 19; Def.'s Mot. to Dismiss, Ex. 7 (Littel Application). Ms. Littell spent three years in private practice, where she engaged in regulatory practice serving communications and media-related businesses. Def.'s Stmt. Issue III(B) ¶ 20; Pl.'s Response Issue III(B) ¶ 20; Def.'s Mot. to Dismiss, Ex. 7 (Littel Application). Her most recent performance appraisal indicated that she received a rating of "pass." Id. During her testimony in the internal grievance process, Ms. Scinto noted that Ms. Littell "capably handled" many projects, "writes in a clear, direct, logical manner, and can be counted on to communicate complex issues simply and clearly," "consistently demonstrates good judgment and discretion," and "works well with other staff." Def.'s Stmt. Issue III(B) ¶ 13; Pl.'s Response Issue III(B) ¶ 13; Def.'s Mot. to Dismiss, Ex. 5 (EEOC Complaint for Plaintiff, Questions for Scinto).

In contrast, Plaintiff's application materials reflect that he earned his J.D. from the University of Michigan in 1974. Def.'s Mot. to Dismiss, Ex. 8 (Wiggins Application). These materials show that Plaintiff joined the Policy Division in December, 1994, and worked on numerous projects since that time. Id. Plaintiff's performance appraisal, attached to his application materials, covers February 1, 2001 through April 30, 2002 and indicates a "pass rating"; however, it also notes that he "needs to continue to focus on writing skills." Def.'s Stmt. Issue III(B) ¶ 21; Pl.'s Response Issue III(B) ¶ 21; Def.'s Mot. to Dismiss, Ex. 8 (Wiggins Application). Plaintiff signed this document, indicating that a mid-year discussion and opportunity for feedback had occurred. Id. However, Plaintiff maintains that he has — and had at that time — no writing deficiencies. Pl.'s Response Issue III(B) ¶ 21. Ms. Scinto's notes also reflect that Plaintiff made an inappropriate comment about pregnant women, though Plaintiff disputes making the comment. Def.'s Stmt. Issue III(B) ¶ 8; Pl.'s Response Issue III(B) ¶ 8; Def.'s Mot. to Dismiss, Ex. 13 (Scinto's Interview Notes re: Candidates) at 2; see also Pl.'s Opp'n to Def.'s Mot. to Dismiss, Ex. C (Declaration of Stanley P. Wiggins) ¶ 2 (explaining remark).

After Plaintiff learned that he had not been selected for VAN-017DF, he contacted the NTEU, which filed a grievance on March 13, 2003, pursuant to Article 38 of the BNA challenging whether the FCC's handling of the selection for the vacancy was "systematic and equitable." Def.'s Stmt. Issue III(A) ¶ 1; Pl.'s Response Issue III(A) ¶ 1; Def.'s Mot. to Dismiss, Ex. 9 (NTEU Chapter 209 Grievance Dated 3/13/03). On behalf of Plaintiff, the NTEU described Plaintiff's grievance as "Unfair treatment-Management failed to comply with various provisions of the [BNA], governing competitive promotions and assignment for attorneys." Def.'s Stmt. Issue III(A) ¶ 2; Pl.'s Response Issue III(A) ¶ 2; Def.'s Mot. to Dismiss, Ex. 9 (NTEU Chapter 209 Grievance Dated 3/13/03). Specifically, Plaintiff challenged (1) whether an evaluating panel of at least two individuals initially reviewed all applications, (2) whether the selecting official was a member of the rating panel, and (3) whether all applicants were determined to be minimally, fully, or best qualified. Def.'s Mot. to Dismiss, Ex. 9 (NTEU Chapter 209 Grievance Dated 3/13/03) at 1. Plaintiff then met with Ms. Scinto on March 25, 2003, "regarding the reasons for his non-selection to the posted positions" that were the subject of his grievance "regarding the candidate review procedures." Def.'s Mot. to Dismiss, Ex. 10 (Letter of Withdrawal). According to NTEU Chapter 209 Shop Seward David O. Ward, "Mr. Wiggins indicated to me that the information exchanged at the meeting was sufficient to resolve his questions regarding the mechanics of the candidate review process. Neither the grievances nor the information exchanged at the meeting addressed the comparative evaluation of candidates. As a result, the grievances are hereby withdrawn."⁵ Id. Therefore, rather than proceeding with his grievance, Plaintiff filed a notice of intent to file suit under the ADEA with the EEOC on May 7, 2003, concerning his non-selection for VAN 03-017DF. See Am. Compl. ¶ 13. Plaintiff's Fourth Amended Complaint in this action, now superceded by his Fifth Amended Complaint, filed on June 7, 2003, was the first Complaint to contain an allegation that his nonselection for VAN 03-017DF constituted age discrimination in violation of the ADEA. See Wiggins v. Powell, Civ. No. 02-1774 (D.D.C. Sept. 29, 2003) (order granting Plaintiff's motion to file fourth amended complaint).

5 Like his grievance relating to his denial of reclassification in 2000, Plaintiff now contends that this grievance is "null and void" because he did not claim "improper ranking or certification of candidates and the BNA specifically excludes from the grievance process `nonselection for promotion from a group of properly ranked and certified candidates.'" Pl.'s Response Issue III(A) ¶ 1; Pl.'s Stmt. of Mat. Facts Still in Dispute ¶ 4.

Plaintiff also filed a separate complaint with the EEO relating to his non-selection for VAN 03-017DF. Def.'s Mot. to Dismiss, Ex. 1 (Formal Complaint of Discrimination Dated 5/6/03). According to Plaintiff's Fifth Amended Complaint, "Plaintiff instituted another administrative complaint, based upon sex discrimination and reprisal, for his non-selection for a grade 15 attorney position, by filing a formal complaint in May 2003." Id. ¶ 17. Plaintiff's May 6, 2003, EEO complaint notes that "[t]he age and gender-based discrimination" he had previously alleged in other complaints "continues unabated," as evidenced by "[t]he most recent, specific discriminatory action" where the FCC "once again failed to select [him] for promotion to GS-15, instead filing vacancy announcement 03-017-DF with a younger and less qualified female colleague, Mindy Littell." Def.'s Mot. to Dismiss, Ex. 1 (Formal Complaint of Discrimination Dated 5/6/03) at 1. Upon this May 2003 complaint, "[t]he FCC investigated the complaint and issued a final agency decision on October 16, 2003." Am. Compl. ¶ 17. Apparently, the FCC denied Plaintiff's complaint, as his Fifth Amended Complaint, filed on November 3, 2003, was the first Complaint to contain an allegation that his non-selection for VAN 03-017DF constituted gender discrimination under Title VII of the Civil Rights Act of 1964. See Wiggins v. Powell, Civ. No. 02-1774 (D.D.C. Nov. 19, 2003) (order granting Plaintiff's motion to file fifth amended complaint).

C. Relief Demanded

As a result of Defendant's alleged violations of the EPA, the ADEA, and Title VII of the Civil Rights Act of 1964, Plaintiff requests that (1) this Court "permanently enjoin" the FCC from violating the statutes with respect to his employment; (2) that his salary be adjusted to the "level that he would have been enjoying but for the discriminatory practices" of Defendant; (3) that he be made "whole" "for all earnings and other benefits which he would have received but for the discriminatory practices of defendant." Am. Compl. at 5. Plaintiff further requests (1) such damages under the Equal Pay Act and the Age Discrimination in Employment Act as are proper, "including, but not limited to, double back pay as liquidated damages"; (2) "costs and disbursements of this action, including reasonable attorney's fees"; (3) "an award of compensatory damages under Title VII, as amended by the Civil Rights Act of 1991, for embarrassment, humiliation and emotional distress"; and (4) "such other relief as may be just and proper." Id. However, "Plaintiff expressly waives any recovery exceeding $10,000.00 under the Equal Pay Act only, so that this Court can maintain jurisdiction of Count I under the Little Tucker Act, 28 U.S.C. § 1346(a)(2)." Id. Plaintiff notes that this waiver does not apply to his ADEA and Title VII claims. Id.

II: LEGAL STANDARDS

Defendant brings this action as a Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and as a Motion for Summary Judgment under Federal Rule of Civil Procedure 56. The Court shall briefly review the relevant legal standards under each rule.

A. Rule 12(b)(1)

A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule 12(b)(1). In general, a motion to dismiss under Federal Rule of Civil Procedure 12(b) should not prevail "unless plaintiffs can prove no set of facts in support of their claim that would entitle them to relief." Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A court may appropriately dispose of a case under 12(b)(1) for standing, and may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Artis v. Greenspan, 223 F. Supp. 2d 139, 152 n. 1 (D.D.C. 2002) ("A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject matter jurisdiction."); Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999) ("where a document is referred to in the complaint and is central to plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment") (citing Greenberg v. The Life Ins. Co. of Virginia, 177 F.3d 507, 515 (6th Cir. 1999)). At the stage in litigation when dismissal is sought, the plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).

B. Rule 12(b)(6)

"In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations." In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be `liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). While the court must construe the Complaint in the Plaintiff's favor, it "need not accept inferences drawn by the plaintiff if such inferences are not supported by the facts set out in the complaint." Kowal, 16 F.3d at 1276. Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C. Cir. 1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control).

C. Rule 56

A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, Defendant, as the moving party, bears the "initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Plaintiff, in response to Defendant's motion, must "go beyond the pleadings and by [his] own affidavits, or depositions, answers to interrogatories, and admissions on file, `designate' specific facts showing that there is a genuine issue for trial." Id. at 324 (internal citations omitted).

Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587 (citing Fed.R.Civ.P. 56(e)) (emphasis in original).

III: DISCUSSION

Defendant offers four major arguments in support of his motion to dismiss or, in the alternative, for summary judgment or summary adjudication: (1) Plaintiff's EPA claim should be dismissed by this Court for lack of jurisdiction, as Plaintiff's claim exceeds the $10,000.00 ceiling for jurisdiction in federal district court; (2) Plaintiff's ADEA and Title VII claims based on "unequal pay for comparable work" must be dismissed as untimely; (3) Plaintiff's "unequal pay for comparable work" claims under the EPA and ADEA are barred by his irrevocable election to challenge the FCC's denial of his desk audit by filing a grievance; (4) Plaintiff's ADEA and Title VII claims relating to his non-selection for VAN 03-017DF are also barred by his irrevocable election to challenge the FCC's denial of his desk audit by filing a grievance; and (5) Plaintiff's ADEA and Title VII claims relating to his non-selection for VAN 03-017DF fail due his inability to meet the McDonnell Douglas tripartite burden-shifting framework, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973), and should therefore be dismissed via summary judgment. The Court shall deal with each of Defendant's arguments in turn.

A. Jurisdiction Over Plaintiff's EPA Claim

Defendant contends that Plaintiff cannot maintain his EPA claim in this court because (1) his EPA-related relief exceeds the $10,000 jurisdictional amount, and (2) Plaintiff's attempted waiver of damages exceeding the monetary ceiling is both insufficiently explicit and untimely. Count I of Plaintiff's Fifth Amended Complaint is brought under the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d), which "prohibits payment of unequal wages for equal work on the grounds of sex, unless the difference is justified by one of four enumerated defenses: a seniority system, a merit system, a system that measures pay by quality or quantity of production, or any other factor not based on sex." Thompson v. Swayer, 678 F.2d 257, 263 (D.C. Cir. 1982). Because the EPA does not include any jurisdictional grant, a court's jurisdiction over EPA-based claims depends on the Tucker Act, 28 U.S.C. § 1346(a)(2) and 28 U.S.C. § 1491(a)(1). Under 28 U.S.C. § 1346(a)(2), commonly referred to as the "Little Tucker Act," the court's jurisdiction in limited to any non-tort "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress." See, e.g., Doe v. Dep't of Justice, 753 F.2d 1092, 1101 (D.C. Cir. 1985). Jurisdiction for those monetary claims against the United States exceeding $10,000 lies exclusively with the Court of Federal Claims. Id. (citing 28 U.S.C. § 1491); see also Schrader v. Tomlinson, 311 F. Supp. 2d 21, 25 (D.D.C. 2004) ("it is well established that claims brought pursuant to the Equal Pay Act must satisfy the jurisdictional requirements of the Tucker Act, 28 U.S.C. § 1491") (internal quotations and citation omitted); Barnes v. Levitt, 118 F.3d 404, 410 (5th Cir. 1997) ("[A] plaintiff asserting an EPA cause of action must bring the action in the Court of Federal Claims if the claim, including the fees sought, exceeds $10,000.").

However, while Tucker Act claims seeking amounts exceeding $10,000 must be brought in the Court of Claims, "plaintiffs may waive all claims in excess of $10,000 to remain within the jurisdiction of the District Court." Stone v. United States, 683 F.2d 449, 450 (D.C. Cir. 1982) ("when a plaintiff seeks government back pay and other monetary allowances, with a deduction for civilian earnings, a waiver of any net recovery in excess of $10,000 is sufficient to establish the District Court's jurisdiction"). "The plaintiff has the burden of establishing that his case lies within the jurisdiction of the court." Id. at 454.

In this case, Plaintiff's Fifth Amended Complaint clearly sets out the limitations of his requested relief. In relevant part, Plaintiff states that he

further prays that the Court award such damages under the Equal Pay Act and the Age Discrimination in Employment Act as are proper, including, but not limited to, double back pay as liquidated damages. Plaintiff further prays that this Court award plaintiff the costs and disbursements of this action, including reasonable attorney's fees. Plaintiff expressly waives any recovery exceeding $10,000.00 under the Equal Pay Act only, so that this Court can maintain jurisdiction of Count I under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). The waiver does not apply to plaintiff's claims under the Age Discrimination in Employment Act and any claim plaintiff may have under 42 U.S.C. § 2000e-16, Title VII of the 1964 Civil Rights Act as amended.

Am. Compl. at 5 (emphasis added). Plaintiff's waiver of recovery in excess of $10,000 for his EPA claim while maintaining the right to recover greater damages under his ADEA and Title VII claims is perfectly permissible, as the EPA claim is his only Tucker Act claim. The Tucker Act itself is focused solely on the recovery amount under claims which require the Act itself for jurisdiction, and other non-Tucker Act claims are not relevant to its jurisdictional analysis. See, e.g., Van Drasek v. Lehman, 762 F.2d 1065, 1069 (D.C. Cir. 1985) ("The district court's jurisdiction under the Tucker Act is limited to claims not exceeding $10,000.") (citing 28 U.S.C. § 1346(a)(2)) (emphasis added); Schrader, 311 F. Supp. 2d at 25 ("[T]he key issue in determining whether this Court has jurisdiction over plaintiff's EPA claim is whether plaintiff's claim exceeds $10,000.") (emphasis added).

Defendant finds two problems with Plaintiff's waiver. First, Defendant asserts that Plaintiff's waiver is untimely, and the Court should exercise its discretion to deny Plaintiff's waiver. Def.'s Mot. to Dismiss at 17-18. Second, Defendant contends that Plaintiff's waiver is not sufficiently explicit. Id. at 18. The Court finds both of Defendant's arguments to be groundless. First, while Plaintiff did not include a waiver in his initial complaint, he was provided the opportunity by this Court to amend his complaint (rather frequently). Generally, "a plaintiff's waiver should be set forth in the initial pleadings." Stone, 683 F.2d at 454 n. 8; Bliss v. England, 208 F.2d 2, 7 (D.D.C. 2002) ("The plaintiff should submit the waiver in her initial pleadings. . . ."). "The Court may make an exception, however, if the issue of jurisdictional amount does not arise until a subsequent stage in the proceedings." Id. (citing cases); Bliss, 208 F.2d at 7 (same). Defendant brought to the Court's attention this same jurisdictional argument in a previous Motion to Dismiss filed on November 12, 2002, and in an Opposition to Plaintiff's Motion for Leave to File Second Amended Complaint on February 25, 2003; the Court exercised its discretion, denied Defendant's motion, and provided Plaintiff an opportunity to amend his complaint in an Order dated September 29, 2003. See Wiggins v. Powell, Civ. No. 02-1774 (D.D.C. Sept. 29, 2003) (order granting Plaintiff's motion to file fourth amended complaint). As such, Defendant's argument regarding an untimely waiver is moot — the Court has already exercised its discretion and permitted the amendment. Second, despite Defendant's attempts to confuse the issue, Plaintiff's waiver is quite explicit and clear. If successful, Plaintiff is to receive — at most — $10,000 in back pay or other monetary damages for the FCC's violation of the Equal Pay Act; Plaintiff may still obtain other compensatory damages, costs and disbursements in this action, reasonable attorneys fees, and further liquidated damages such as double back pay under the ADEA and Title VII. See Am. Compl. at 5. Accordingly, the Court finds that Plaintiff's waiver was both timely and sufficiently unambiguous that it has proper Tucker Act jurisdiction to hear Plaintiff's EPA claim in this case.

B. The Timeliness of Plaintiff's ADEA and Title VII Claims Based on "Unequal Pay For Comparable Work"

Defendant next contends that Plaintiff's ADEA and Title VII claims related to his belief that he was being paid unequally for comparable work should be dismissed as untimely because he failed to pursue his ADEA and Title VII remedies after the FCC determined in November, 2000, that he would not be paid as a GS-15 for the work he was performing. Def.'s Mot. to Dismiss at 19.

"Before suing under either the ADEA or Title VII, an aggrieved party must exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory incident." Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (1998) (citations omitted). Under Title VII, the person so aggrieved has 45 days to make contact with an EEOC counselor and 180 days to file an official discrimination charge. See 42 U.S.C. §§ 2000e-16(b), (c); 29 C.F.R. 1614.105(a)(1). According to the ADEA, a federal employee may bring the claim directly to federal court if he gives at least 30 days notice to the EEOC of his intent to sue and he files this notice within 180 days after the alleged discriminatory conduct. 29 U.S.C. § 633a(d); Rann v. Chao, 209 F. Supp. 2d 75, 78-79 (D.D.C. 2002). Alternatively, the plaintiff may elect to pursue administrative remedies and, if the plaintiff is dissatisfied with the result of the administrative proceedings, the plaintiff may file suit in federal court once he has fully exhausted his administrative remedies. 29 U.S.C. § 633a(b); Stevens v. Dep't of Treasury, 500 U.S. 1, 5-6 (1991) (describing the two routes by which a federal employee may bring an ADEA claim to federal court). The time limits operate like statutes of limitations, and exhaustion of administrative remedies is considered a prerequisite to bringing a federal action. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-22 (1976); Washington, 160 F.3d at 752; Bayer v. Dep't of Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992). Therefore, if a plaintiff has not met the filing requirements under the statutes, his federal court action is not timely. See Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985) ("[T]he plaintiff who fails to comply, to the letter, with administrative deadlines `ordinarily will be denied a judicial audience.'") (citation omitted).

Importantly, it is necessary to clarify exactly what constitutes Plaintiff's age and gender pay disparity allegations, and when Plaintiff first became aware of and actually brought a complaint concerning "unequal pay for equal work" that was based on age and gender discrimination. In November, 2000, Plaintiff was notified that the desk audit that he had requested in September, 2000, had determined that his position was properly classified at the GS-14 level and that his request for accretion of duties promotion was therefore denied. Def.'s Stmt. Issue I ¶ 3; Pl.'s Response Issue I ¶ 3; Def.'s Opp'n to Leave, Ex. 1 (Classification Appeal Decision by Managing Director Andrew S. Fishel). It is clear from the record that, at this time, Plaintiff felt that this denial — which continued his alleged "unequal pay for equal work" violation — was motivated, in part, by age and gender discrimination. See Am. Compl. ¶ 14 ("Plaintiff has brought the specifics of this age discrimination in pay to the attention of his supervisors and agency management and requested relief in the form of an accretion of duties promotion to grade 15."). In an Interoffice Memorandum to Tom Surgrue on December 28, 2000, Plaintiff noted that he faced certain administrative deadlines to preserve such a claim: "I face a December 29 deadline for initiating the internal EEO complaint process if I wish to preserve the option of a gender and age discrimination complaint." Def.'s Opp'n to Leave, Ex. 3 (Memorandum from Plaintiff to Surgrue) at 1. Plaintiff compared his responsibilities to a female GS-15 attorney and felt that his duties were at a higher level while his pay was at a lower level; Plaintiff notified Mr. Surgrue that "this continuing disparity . . . constitutes unlawful gender discrimination." Id. at 2.

In an April 6, 2001, Plaintiff asked Mr. Fishel to reconsider the desk audit decision, and conduct a second, curative desk audit. Def.'s Opp'n to Leave, Ex. 4 (Memo from Plaintiff to Fishel). Once again, Plaintiff focused on the fact that his alleged "unequal pay for equal work" resulted from age and gender-based discrimination. See id. at 1 ("I notified you on December 28, 2000, of my intention to preserve my rights regarding possible gender and age discrimination actions arising from my personnel situation."; "The immediate instance of continuing age discrimination, considered below, is your memorandum of November 16, 2000, which denied my request for reclassification at the GS-15 level."), at 2 ("Because these circumstances support the filing of grievances, aside from the initiation of age and gender discrimination litigation, . . . ."); at 2-3 ("I also understand that while a pure age discrimination action may be brought directly in federal court, actions involving other forms of discrimination require that administrative remedies first be exhausted."). Plaintiff concluded his request to Mr. Fishel by asserting that "[y]our refusal to undertake a second desk audit would also, in my view, reinforce the pattern of discrimination over the last several years." Id. at 2.

Problematically for Plaintiff, applicable EEOC regulations provide that

[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.

29 C.F.R. § 1614.105(a)(1). A plaintiff then has 180 days to file an official charge of discrimination. 42 U.S.C. §§ 2000e-16(b), (c). In this case, Plaintiff was notified that his position was properly classified and that he would not receive a GS-15 salary on November 16, 2000, in the Classification Appeal Decision by Andrew Fishel. Def.'s Opp'n to Leave, Ex. 1 (Classification Appeal Decision by Managing Director Andrew Fishel). Plaintiff clearly attributed this denial — and alleged continuation of "unequal pay for equal work" — to age and gender-based discrimination within the FCC. However, Plaintiff's first mention to the EEOC of possible gender-based discrimination in contravention of Title VII was not until September 6, 2002, see Am. Compl. ¶ 14, and he did not file a formal EEO complaint, alleging gender discrimination in pay, until November 19, 2002, id. ¶ 17. As such, Plaintiff did not notify the EEOC within 180 days of the alleged discriminatory event, and it appears as though Plaintiff's contact with the EEOC regarding gender-based discrimination resulting in "unequal pay for equal work" was therefore well outside of the limitations period set out in 29 C.F.R. § 1614.105(a)(1) and 42 U.S.C. §§ 2000e-16(b), (c). As such, Plaintiff's Title VII claim relating to "unequal pay for equal work" appears to be procedurally barred as untimely.⁶

6 Plaintiff clearly had an awareness of the procedural deadlines in order to preserve his claims. See, e.g., Def.'s Opp'n to Leave, Ex. 3 (Memorandum from Plaintiff to Surgrue) at 1 ("I face a December 29 deadline for initiating the internal EEO complaint process if I wish to preserve the option of a gender and age discrimination complaint. The EEO filing deadline is determined by the Managing Director's November 16 action, which denied my reclassification request on the basis of a desk audit."); Pl.'s Response Issue I ¶ 5 ("Admitted that plaintiff had some awareness of EEO deadlines in December 2000 as indicated in the cited exhibits."); Def.'s Opp'n to Leave, Ex. 4 (Memo from Plaintiff to Fishel) at 3 ("I further understand that notice of intention to pursue the litigation remedy for discrimination must be provided [to] the EEOC within six months of the action complained of . . . notice of intention to initiate a suit alleging age discrimination must be submitted to the Equal Opportunity Commission by May 16, 2001."); Def.'s Opp'n to Leave, Ex. 5 (Memo from Plaintiff to McBride) at 1 ("The deadline for notifying the EEOC of litigation based on age discrimination is now a month off. . . .").

Likewise, while the ADEA provides two separate routes for a federal employee seeking to bring an age discrimination claim to federal court — (1) after the complete exhaustion of all administrative remedies, 29 U.S.C. § 633a(b); or (2) after providing at least 30 days notice to the EEOC of the intent to sue and filing suit within 180 days from the date of the alleged discriminatory conduct, 29 U.S.C. § 633a(d) — Plaintiff failed to meet the requirements of either route. Plaintiff never fully exhausted his administrative remedies as to the denial of his desk audit, which was allegedly due to age and gender-discrimination, and the fact that his lawsuit in this action commenced on September 9, 2002, ensures that he neither provided 30 days notice to the EEOC of his intent to sue nor brought the action within the requisite 180 days of the alleged discriminatory event. Accordingly, Plaintiff's ADEA claim relating to "unequal pay for equal work" appears to be procedurally barred as untimely as well.

However, Plaintiff attempts to save these two claims by resorting to the "continuing violation theory." Pl.'s Opp'n to Def.'s Mot. to Dismiss at 12. According to Plaintiff, "Plaintiff here has properly alleged a continuing violation going back three years from the filing of his original complaint." Id. Rather than agreeing to Defendant's contention that Plaintiff's Title VII and ADEA claims, as they relate to "unequal pay for equal work," are untimely, Plaintiff maintains that "Defendant again ignores the clear case law that each pay period is a new violation of equal pay."⁷ Id. (citing cases). Indeed, Plaintiff's own memoranda and filings indicate that he felt that age and gender-based discrimination continued to deny him his rightful GS-15 status for a period of years. See, e.g., Def.'s Opp'n to Leave, Ex. 4 (Memo from Plaintiff to Fishel) ("Your refusal to undertake a second desk audit would also, in my view, reinforce the pattern of discrimination over the last several years. . . .") (emphasis added); Pl.'s Reply to Def.'s Opp'n to Leave, Ex. 1 (Decl. of Stanley P. Wiggins) ¶ 4 ("My complaint in this court case is not based upon the results of my desk audit. It is based upon the agency's continuing practice of paying me less for equal work compared to women and a substantially younger male doing equal work to myself."); Am. Compl. ¶¶ 4-6 (Plaintiff contends that he "has repeatedly brought this [disparity] to the attention of his supervisors and agency management and requested pay equity through an accretion of duties promotion," but "the agency management has failed to take corrective action" and "[t]his disparity in pay is continuing and continues through the date of the filing of this complaint").

7 Presumably, Plaintiff is arguing that since he received less pay than one of his female counterparts — or even the unidentified male counterpart — with 45 days of reporting to an EEO counselor and bringing this lawsuit, he has satisfied the requirements to maintain his Title VII and ADEA claims as they relate to "unequal pay for equal work."

A continuing violation exists "[w]here the discriminatory practice is continuing in nature." Gary v. Washington Metro. Area Transit Auth., 886 F. Supp. 78, 89 (D.D.C. 1995). In cases of continuing discriminatory violations, "the required time periods for filing administrative complaints should run `from the last occurrence of the discrimination and not from the first occurrence.'" Id. (citing 118 Cong. Rec. 7167 (1972) (conference report)). In order to adequately allege a continuing violation, the plaintiff "must show that at least one adverse employment action occurred within the [limitations] period" that was related to the claims falling outside the filing period. Id.; see also Schrader, 311 F. Supp. 2d at 27 (same). "Specific, unrelated incidents of discrimination do not constitute a continuing violation." Id. "Moreover, the District of Columbia Circuit has clearly held that a plaintiff may not rely on the continuing violation theory where [he] was aware of the discriminatory conduct at the time it occurred." Schrader, 311 F. Supp. 2d at 27 (citing Taylor, 132 F.3d at 765). As the D.C. Circuit explained, "[f]or statute of limitations purposes, a continuing violation is `one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitation period[.]'" Taylor, 132 F.3d at 765 (citation omitted); see also Albritton v. Kantor, 944 F. Supp. 966, 971 (D.D.C. 1996) ("[i]f the employee could not perceive discrimination until a series of acts occurred, then the employee should be able to plead the earlier, [otherwise] time-barred claim") (citations omitted).

Here, it is evident that Plaintiff had knowledge of the alleged age and gender-based discrimination resulting in his "unequal pay for equal work" well before Defendant contacted the EEOC in September, 2002, filed a formal EEOC complaint in November, 2002, and filed this lawsuit on September 9, 2002. Plaintiff's own writings after the denial of his desk audit on November 16, 2000, indicate that he was both aware of an alleged pattern of age and genderbased discrimination against him at the FCC and considered the possibility of litigation to remedy the resulting "unequal pay for equal work." Clearly, the continuing violation theory is not available to Plaintiff as to his Title VII and ADEA claims as they relate to "unequal pay for equal work" when he had reason to know of — and had actual knowledge of — the alleged gender and age-based discrimination against him in November, 2000, and did not initiate contact with an EEO counselor or file the present suit until approximately two years later. See Schrader, 311 F. Supp. 2d at 27; see also Taylor, 132 F.3d at 765 (holding that plaintiffs did not establish a continuing violation where the alleged retaliatory action, according to plaintiffs, "amply manifested itself as a possible retaliation from the start"); Kilpatrick v. Riley, 98 F. Supp. 2d 9, 18 (D.D.C. 2000) (holding that continuing violation theory did not apply to plaintiff's discrimination claim, which occurred in 1980, where plaintiff filed an EEO complaint in 1991 and, according to plaintiff's own factual record, by 1980 he already believed that his employer systematically discriminated against non-white employees); Rendon v. Dist. of Columbia, Civ. No. 85-3899, 1986 WL 15446, at *3 (D.D.C. Nov. 19, 1986) (holding that plaintiff's claims of race discrimination that she knew or had reason to know about and that were not timely filed with the EEOC were barred from consideration by the court).

As already noted, Plaintiff seems to be arguing that his Title VII and ADEA claims relating to "unequal pay for equal work" invoke the continuing violation theory, and because he and various females (and an unidentified male) presumably received disparate paychecks within 45 days of his EEO contact and filing of this suit, each of his discrimination claims relating to "unequal pay for equal work" are salvaged. Pl.'s Opp'n to Def.'s Mot. to Dismiss at 12. Plaintiff cites a variety of cases that fundamentally rely on the Supreme Court's decision in Bazemore v. Friday, 478 U.S. 385, 395, 396 (1986), as support for this position. Id. However, Bazemore is fundamentally distinguishable from this case; in Bazemore, the Supreme Court found that the plaintiffs had established that there was a pattern of discrimination, as evidenced by the disparity in pay between blacks and whites, that had begun prior to Title VII's applicability to the defendant-employer and continued thereafter. Bazemore, 478 U.S. at 395-96. In regards to the plaintiff's rights to recover for these pay disparities, the Court held:

Each week's paycheck that delivers less to a black than a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.

Id.; cf. Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113-114 (2002) ("discrete discriminatory acts" such as "termination, failure to promote, denial of transfer, or refusal to hire" "are not actionable if time barred, even when they are related to timely filed charges").

However, Bazemore concerned a pattern of disparate payment of wages to black employees compared to white employees, Bazemore, 478 U.S. at 395, whereas here, Plaintiff's complaint only concerns the treatment of himself vis-à-vis a small subset of employees, which includes both men and women. Am. Compl. ¶¶ 4, 14. Plaintiff's Title VII and ADEA claim relating to "unequal pay for equal work" can be construed as a complaint about not being promoted to a GS-15 position within the FCC and not receiving GS-15 pay, in light of the fact that he was allegedly doing the same work as a GS-15 employee — i.e., that because he was denied a promotion to GS-15 in November, 2000, due to the denial of his desk audit, he continues to suffer "unequal pay for equal work." See Schrader, 311 F.2d at 28. In Williams v. Munoz, 106 F. Supp. 2d 40 (D.D.C. 2000), the court rejected a plaintiff's similar reliance on the Bazemore principle and held that the continuing violation theory was not applicable to her claim of discrimination. There, the plaintiff argued that she was paid less than a comparable male employee and "each paycheck she received was one of a series of related acts, each one an additional violation, because each was for less than she would have been paid had she been promoted." Id. at 42-43. The Williams Court noted that the Supreme Court in Bazemore "limited [its] holding to the facts before it, which were quite different from the facts of this case." Id. at 43 (citation omitted). The Williams Court held that the crux of plaintiff's claim was the failure to promote because, "[i]f the amount of [plaintiff's] paychecks was too little each month, it was in consequence of the failure to promote, not an individual violation. As [plaintiff] has alleged no acts occurring period, [she] has not establish a continuing violation." Id.; see also Schrader, 311 F.2d at 28 (making same distinction); Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 29 (D.D.C. 2001) ("Plaintiff does not allege, nor is there any evidence in the record of, a discriminatory system as . . . in Bazemore. Plaintiff is merely arguing that defendant has failed to correct an alleged previous retaliatory action and plaintiff continues to feel its effects.").

The Seventh Circuit, in Dasgupta v. University of Wisconsin Board of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997), made the same distinction as the Williams Court. Noting that the Dasgupta case was "at the opposite pole" from Bazemore, the court noted:

There were no new violations during the limitations period, but merely a refusal to rectify the consequences of time-barred violations. It is not a violation of Title VII to tell an employee he won't get a raise to bring him up to the salary level he would have attained had he not been discriminated against at a time so far in the past as to be outside the period during which he could bring a suit seeking relief against that discrimination.

Id. at 1140; see also Snider v. Belvidere Township, 216 F.3d 616, 618 (7th Cir. 2000). As the Dasgupta Court concluded, "[a] lingering effect of an unlawful act is not itself an unlawful act, however, so it does not revive an already time-barred illegality." Id. The D.C. Circuit, in Law v. Cont'l Airlines Corp., ___ F.3d ___, 2005 WL 433387 (D.C. Cir. Feb. 25, 2005), explicitly adopted this reasoning by distinguishing and denying the Plaintiff's "attempt to make the consequences of the act (less pay) appear to be the discriminatory act, rather than the act that caused their pay to remain at the same level (the bid denial)." Id. at *3.

The Court finds the reasoning adopted by these courts and the D.C. Circuit to be persuasive here. Plaintiff has not argued for, nor has he established, a pattern or system of discrimination against males or those over forty years old generally within the FCC; rather, the only premise that he has established is that he is being paid less than certain allegedly similar individuals, not that males in general were paid less than women. See Am. Compl. at ¶ 14 ("The agency has failed to correct this age discrimination in pay by granting plaintiff the accretion of duties promotion he is entitled to, and has requested. . . ."), at 5 ("Plaintiff further prays that the Court order defendant to adjust his salary to the level he would have been enjoying but for the discriminatory practices of defendant and that the Court compensate and make whole plaintiff for all earnings and other benefits which he would have received but for the discriminatory practices of defendant."). As such, the continuing violation doctrine fails to sustain Plaintiff's Title VII and ADEA claims as they relate to "unequal pay for equal work." See United Air Lines v. Evans, 431 U.S. 553 (1977); Delaware State College v. Ricks, 449 U.S. 250 (1980); see also Def.'s Opp'n to Leave, Ex. 8 (Step 3 Grievance Decision) at 2 (rejecting Plaintiff's continuing violation argument in the negotiated grievance arena). Accordingly, the Court shall dismiss Counts II and III of Plaintiff's Fifth Amended Complaint as they relate to Plaintiff's claim of "unequal pay for equal work."⁸ C. Plaintiff's Alleged Irrevocable Election to Challenge the FCC's Denial of His Desk Audit by Filing a Grievance

8 This ruling does not apply to Count I of the Fifth Amended Complaint — Plaintiff's Equal Pay Act claim. As the Supreme Court has noted, "the statute of limitations for backpay relief is more generous under the Equal Pay Act than under Title VII, and the Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts. Given these advantages, many plaintiffs prefer to sue under the Equal Pay Act rather than Title VII." Washington County v. Gunther, 452 U.S. 161, 175 n. 14 (1981) (citing B. Babcock, A. Freedman, E. Norton, S. Ross, Sex Discrimination and the Law 507 (1975)).
As to the statute of limitations question, the Equal Pay Act only allows individuals to recover back pay for the two year period prior to the filing of suit under the Act, unless the Plaintiff can prove that the allegedly illegitimate differential in pay was "known" to the proper authorities and imposes or retained "willfully." See Laffey v. Northwest Airlines, 567 F.2d 429, 461-61 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086 (1978); Cayce v. Adams, 439 F. Supp. 606, 609 (D.C. Cir. 1977). If willfulness is shown, the statute of limitations extends to three years. See B. Schlei P. Grossman, Employment Discrimination Law 441 (1983) and cases cited therein. In this suit, Plaintiff filed his complaint less than two years after he was denied GS-15 status during his desk detail audit — November 16, 2000, v. September 9, 2002. As such, it appears as though Count I of the Fifth Amended Complaint, Plaintiff's EPA claim, is timely under either EPA deadline. Plaintiff's Fifth Amended Complaint asserts that "[s]aid violation of the Equal Pay Act was and has been willful on the part of defendant," entailing that Plaintiff would get three years from the date of the alleged offense to file his complaint. See Am. Compl. ¶ 8.

Defendant next asserts that "Plaintiff's unequal pay claims under Counts I and II are barred by his irrevocable election to challenge the Agency's denial of his `desk audit' by filing a grievance." Def.'s Mot. to Dismiss at 22. Because this Court has already dismissed Plaintiff's "unequal pay for equal work" claim under Count II (ADEA), supra III.B., the Court shall only deal with Defendant's arguments regarding Plaintiff's choice to file a grievance as they impact Count I — Plaintiff's EPA claim.

The NTEU filed a grievance on behalf of Plaintiff on June 18, 2001, relating to alleged procedural deficiencies in Plaintiff's reclassification review that apparently violated certain provisions of the Basic Negotiated Agreement ("BNA"). Def.'s Stmt. Issue II ¶¶ 2-4; Pl.'s Response Issue II ¶¶ 2-4; Def.'s Opp'n to Leave, Ex. 6 (NTEU Chapter 209 Grievance). Plaintiff's grievance contended that he suffered "unfair treatment" when "[t]he Employee's position description did not reflect accurately the Employee's principal duties, responsibilities, and supervisory relationships," Def.'s Opp'n to Leave, Ex. 6 (NTEU Chapter 209 Grievance) at 1 — a claim arguably somewhat similar to Count I of Plaintiff's Fifth Amended Complaint. See Am. Compl. ¶¶ 1-9. In a decision authored on January 17, 2002, Anna Gomez, Deputy Bureau Chief, Internal Bureau of the FCC, denied Plaintiff's grievance as it related to alleged procedural deficiencies in the reclassification review process. Def.'s Stmt. Issue II ¶ 5; Pl.'s Response Issue II ¶ 5; Def.'s Opp'n to Leave, Ex. 8 (Step 3 Grievance Decision). The NTEU declined to pursue arbitration relating to this claim and Plaintiff did not invoke the appeals process. Def.'s Stmt. Issue II ¶¶ 6-7; Pl.'s Response Issue II ¶¶ 6-7. As such, both sides agree that the grievance procedure relating to the desk audit was not exhausted. Def.'s Mot. to Dismiss at 24; Pl.'s Opp'n to Def.'s Mot. to Dismiss at 12-13.

While Plaintiff acknowledges the existence of this grievance, he asserts that his grievance brought by the NTEU was ultimately invalid because (1) it was not timely filed under the BNA, and (2) position classification is actually excluded from the grievance procedure. Pl.'s Response Issue II ¶ 5 (citing Def.'s Opp'n to Leave, Ex. 8 (Step 3 Grievance Decision) at 1); Pl.'s Stmt. of Mat. Facts Still in Dispute ¶ 3. Plaintiff's contention is founded in the record, as it is clear that Ms. Gomez rejected his grievance relating to "unequal pay for equal work" because, as she stated, "I find that your grievance is not grievable under the BNA and is not timely filed." Def.'s Opp'n to Leave, Ex. 8 (Step 3 Grievance Decision) at 2; id. at 1 ("I find that your grievance concerns a position classification issue which is specifically excluded from coverage from the Negotiated Grievance Procedure."). Under Section 3(E) of the BNA, "the classification of any position which does not result in the reduction in grade or pay of an employee" is "specifically excluded from the coverage" of the BNA. Def.'s Opp'n to Leave, Ex. 7 (Article 38 of the BNA) at 3, § 3(F). Moreover, Section 15 of the BNA provides that "[f]ailure on the part of the aggrieved or the aggrieved's representative to prosecute the grievance at any step of the negotiated grievance procedure within the time limits specified will have the effect of nullifying the grievance." Id. at 5, § 15.

The importance of Plaintiff's attempted grievance relating to "unequal pay for equal work" arising out of his denial of reclassification review is made clear by the Civil Service Reform Act, 5 U.S.C. § 7101 et seq. ("CSRA"). The CSRA, in relevant portion, provides:

An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both.

5 U.S.C. § 7121(d) (emphasis added); see also 5 U.S.C. § 2302(b)(1) (listing the prohibited personnel practices, which include discrimination based on race, color, religion, sex, national origin, age, disability, marital status or political affiliation); Johnson v. Peterson, 996 F.2d 397, 399 (D.C. Cir. 1993) ("[S]ection 7121(d) . . . requires the employee to make an irrevocable choice between the statutory and the negotiated procedure."). Article 38 of the BNA between the FCC and the NTEU echoes the CSRA. Compare Def.'s Opp'n to Leave, Ex. 7 (Article 38 of the BNA) with 5 U.S.C. § 7121(d).

Defendant's basic argument is that because Plaintiff chose the negotiated grievance procedure initially, he forfeited the opportunity to pursue the statutory procedure as to the EPA, especially after exhaustion did not occur. Def.'s Mot. to Dismiss at 23. Unfortunately for Plaintiff, his argument that because (1) his grievance was outside of the BNA and (2) also untimely and void, it should not be counted as a "raised matter" under "the negotiated procedure" finds no support in the relevant caselaw. See, e.g., Guerra v. Cuomo, 176 F.3d 547, 549 (D.C. Cir. 1999) ("The dispositive question, therefore, is whether [plaintiff's] grievance and her later filed EEO complaint involve the same "matter" thereby precluding a lawsuit based on the EEO complaint.") (citing with approval, Facha v. Cisneros, 914 F. Supp. 1142, 1149 (E.D. Pa. 1996), aff'd, 106 F.3d 384 (3d Cir. 1996) (unpublished table decision) ("Our inquiry is straightforward: If [plaintiff] raised a topic in both documents, or if the arbitrators assigned to handle the grievance would necessarily have needed to inquire into a topic in discharging their duties, then § 7121(d) bars her from raising that same topic in her subsequent EEO complaint.")). As such, if Plaintiff raised the same "matter" in his June 18, 2001, NTEU Grievance and Count I of his Fifth Amended Complaint (EPA), then Plaintiff will be procedurally barred from maintaining his EPA claim and dismissal shall be warranted.

However, this Court concludes that the "matter" raised in Plaintiff's June 18, 2001, NTEU Chapter 209 Grievance is different than the "matter" raised in Count I of Plaintiff's Fifth Amended Complaint. While he clearly attempted to resolve a "matter" under what would be considered a "negotiated procedure" for CSRA purposes, the "matter" that he complained about dealt with alleged procedural violations that supposedly occurred during his desk audit and reclassification review in the Fall of 2000. See Def.'s Opp'n to Leave, Ex. 6 (NTEU Chapter 209 Grievance). On behalf of Plaintiff, the NTEU listed four specific complaints: (1) Plaintiff's "position description did not reflect accurately" his "principal duties, responsibilities, and supervisory relationships"; (2) "the Office of Managing Director (OMD) distorted the desk audit procedure" by "disregarding explicit language in the Office of Management and Budget (OMB) classification standard, which recognizes that responsible attorney positions do not necessarily entail meeting with persons outside the agency, and then (b) establishing a standard for such outside contacts that few, if any, GS-15 staff attorneys at the Commission could satisfy"; (3) Plaintiffs "annual appraisals were disregarded during the desk audit in favor of unsubstantiated statements" of his performance; and (4) Plaintiff's Division Chief "provided the desk auditor with appraisal information on [Plaintiff] that contradicted adversely the consistent entries and ratings contained in the Employee's annual appraisals." Id. at 1. As such, the NTEU requested that "the OMD restore integrity to the desk audit process," strike certain testimony, rewrite Plaintiff's position description, and conduct a new desk audit under proper procedures. Id. at 2.

Plaintiff's Fifth Amended Complaint, Count I, contains substantially different allegations. Rather than complaining about how the procedures he faced violated certain norms and negotiated methods, Plaintiff's EPA claim contends that the substantive determination made by the desk auditor and Mr. Fishel on appeal to deny Plaintiff GS-15 status was the result of ingrained age and gender-based discrimination against him. See Am. Compl. ¶¶ 1-9. While Plaintiff's NTEU Grievance essentially sought to correct certain imbalances and ensure conformity with procedural norms, Plaintiff's EPA claim suggests that even had Defendant followed the correct procedures, Plaintiff still would have been denied his rightful GS-15 status because of age and gender-based discrimination within the agency. Indeed, whether the desk audit was conducted in a discriminatory manner was not at issue in Plaintiff's NTEU Grievance. The danger mentioned in Guerra — where the "matters" involved where virtually identical and for the plaintiff's explanation "to suffice to distinguish the `matter' covered in her grievance from that in her EEO complaint would mean that an employee could simply formulate an EEO complaint on the basis of dissatisfaction with the results of the grievance process," Guerra, 176 F.3d at 550 — is not present here. Plaintiff is not complaining about the Ms. Gomez's rejection of his NTEU complaint, nor is he re-litigating the proper administrative standards for a desk audit. As such, Count I of the Fifth Amended Complaint, Plaintiff's EPA claim, is not barred by the strictures of the CSRA and dismissal is not warranted.

D. Plaintiff's Alleged Irrevocable Election to Challenge the His Non-Selection to VAN 03-017DF by Filing a Grievance

Similarly, Defendant also contends that "Plaintiff's ADEA and Title VII claims based on his non-selection for [VAN 03-017DF] . . . are barred by his irrevocable election to challenge the Agency's selection under the applicable negotiated grievance procedure." Def.'s Mot. to Dismiss at 25. Once again, Defendant is making an argument under the CSRA and is referring to the fact that Plaintiff chose to contact the NTEU and file an internal grievance under the collective bargaining agreement that he ultimately withdrew before filing this action. Id. According to Defendant, because Plaintiff chose the "negotiated procedure" route and then failed to exhaust his remedies before filing a discrimination claim based on the same matter, Plaintiff's ADEA and Title VII claims relating to his non-selection for VAN 03-017DF in this suit are precluded from this Court's consideration. Id. at 25-26.

As the Court made clear previously, supra III.C., in order to find that Plaintiff's ADEA and Title VII claims relating to his non-selection are precluded, Plaintiff must have brought up the same "matter" in his negotiated grievance proceedings. It is necessary, then, to make a careful factual inquiry into the circumstances surrounding Plaintiff's NTEU Grievance relating to his non-selection. After Plaintiff learned that he had not been selected for VAN-017DF, he contacted the NTEU, which filed a grievance on March 13, 2003, pursuant to Article 38 of the BNA challenging whether the FCC's handling of the selection for the vacancy was "systematic and equitable." Def.'s Stmt. Issue III(A) ¶ 1; Pl.'s Response Issue III(A) ¶ 1; Def.'s Mot. to Dismiss, Ex. 9 (NTEU Chapter 209 Grievance Dated 3/13/03). On behalf of Plaintiff, the NTEU described Plaintiff's grievance as "Unfair treatment-Management failed to comply with various provisions of the [BNA], governing competitive promotions and assignment for attorneys." Def.'s Stmt. Issue III(A) ¶ 2; Pl.'s Response Issue III(A) ¶ 2; Def.'s Mot. to Dismiss, Ex. 9 (NTEU Chapter 209 Grievance Dated 3/13/03). Specifically, Plaintiff challenged (1) whether an evaluating panel of at least two individuals initially reviewed all applications, (2) whether the selecting official was a member of the rating panel, and (3) whether all applicants were determined to be minimally, fully, or best qualified. Def.'s Mot. to Dismiss, Ex. 9 (NTEU Chapter 209 Grievance Dated 3/13/03) at 1. After meet with Ms. Scinto on March 25, 2003, "regarding the reasons for his non-selection to the posted positions" that were the subject of his grievance "regarding the candidate review procedures," Plaintiff indicated "that the information exchanged at the meeting was sufficient to resolve his questions regarding the mechanics of the candidate review process." Def.'s Mot. to Dismiss, Ex. 10 (Letter of Withdrawal). As noted by NTEU Chapter 209 Shop Seward David O. Ward, who handled the grievance for Plaintiff, "[n]either the grievances nor the information exchanged at the meeting addressed the comparative evaluation of candidates." Id. However, Plaintiff chose to withdraw his grievance and declined to further pursue this avenue of relief. Id.

Plaintiff's Fifth Amended Complaint, Counts II (ADEA) and III (Title VII) as they relate to his non-selection for the vacancy, contain substantially different allegations than were present in his NTEU Grievance. Rather than complaining about how the procedures he faced in the initial review stage — when candidates were selected to be interviewed — violated certain norms and negotiated methods, Plaintiff's ADEA and Title VII claims relating to his non-selection contend that the substantive determination made by Ms. Scinto to pass over Plaintiff was the result of impermissible age and gender bias. See Am. Compl. ¶¶ 11-21. There is no evidence that Plaintiff brought up the topic of age and gender-based discrimination in his NTEU Grievance or in his March 25, 2003, meeting with Ms. Scinto; rather, the meeting appeared to "resolve [Plaintiff's] questions regarding the mechanics of the candidate review process" but did not "address the comparative evaluation of candidates." Def.'s Mot. to Dismiss, Ex. 10 (Letter of Withdrawal). Indeed, it is probable that Plaintiff's NTEU Grievance, even if fully exhausted, would never have touched on age or gender-based discrimination, as, by its very wording and contours, it was focused only on initial review procedures. Once again, the Court is confronted with a situation far different from that in Facha, where the court compared the plaintiff's grievance with her EEO complaint and found that, "Simply put, when [plaintiff] challenged her superiors' criticism of her work in her grievance, she put that `matter' in issue, and she could not thereafter raise criticism of her work in the EEO complaint." Facha, 914 F. Supp. at 1150 n. 8. Here, Plaintiff did not put forth the possibility that the selection process for VAN 03-017DF was infused with age and gender-based discrimination at issue in his March 13, 2003, NTEU Grievance. In this suit, Plaintiff is not complaining about initial review procedures that he faced, nor is he re-litigating the proper administrative standards for such a review. As such, Counts II and III of the Fifth Amended Complaint, Plaintiff's ADEA and Title VII claims as they relate to his non-selection to VAN 03-017DF, are not barred by the strictures of the CSRA and dismissal is not warranted.

E. Defendant's Contention that Summary Judgment Is Warranted as to Plaintiff's ADEA and Title VII Claims Relating to His Non-Selection for VAN 03-017DF Due to the Legitimate, Non-Discriminatory Reasons for the Hiring Decision

Defendant's spends a great deal of effort in an attempt to persuade the Court that because the FCC has offered a non-discriminatory reason for Plaintiff's non-selection to VAN 03-017DF — i.e., that (1) Plaintiff's writing was found to merit improvement and was not at the same level of quality as the selectee and (2) Plaintiff's dealings with outsiders were found to be problematic, see Def.'s Mot. to Dismiss at 28 — then Plaintiff must prove discrimination vel nom under the McDonnell Douglas framework, id. at 26-31. According to Defendant, based on the previous EEO testimony of the interviewing panel, and Ms. Scinto especially, along with a comparison of the candidates' applications, it is clear that the decision to fill the vacancy consisted of "fine distinctions," "assessing the significance of small differences in the qualifications," and "making a judgment call." Id. at 30. According to Defendant, because Plaintiff can show — at most — a "close call," he is not entitled to proceed beyond the summary judgment stage. Id.

Problematically, no discovery has occurred in this case, largely due to the delaying tactics of the parties. Plaintiff has not yet been afforded the opportunity to conduct discovery by interrogatories, requests for documents, and depositions, nor has Plaintiff consulted with expert witnesses on Plaintiff's alleged EPA issue and proffered expert testimony. According to Plaintiff, material facts such as "[w]hether plaintiff was better qualified than the female selectees, for grade 15 positions in question" and "[w]hether defendant's reasons for claiming the female selectees were better qualified for the positions in question are pretexts for discrimination or reprisal" remain in dispute at this time. Pl.'s Stmt. of Mat. Facts Still in Dispute at ¶¶ 1-2. As such, Plaintiff seeks the protection of Federal Rule of Civil Procedure 56(f) in order to argue that Defendant is not entitled to summary judgment at this time. Pl.'s Opp'n to Def.'s Mot. to Dismiss at 13-14.

Under Rule 56(f), a court "may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion." Strang v. United States Arms Control Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1175 (D.C. Cir. 1981). "[T]he purpose of Rule 56(f) is to prevent `railroading' the non-moving party through a premature motion for summary judgment before the non-moving party has had the opportunity to make full discovery." Dickens v. Whole Foods Market Group, Inc., Civ. No. 01-1054, 2003 WL 21486821, at *2 n. 5 (D.D.C. Mar. 18, 2003) (citing Celotex Corp., 477 U.S. at 326). The district court has discretion in determining whether it should permit additional discovery before the motion for summary judgment is resolved. Stella v. Mineta, 284 F.3d 135, 147 (D.C. Cir. 2002).

A party seeking the protection of Rule 56(f) "must state by affidavit the reasons why he is unable to present the necessary opposing material." Cloverleaf Standardbred Owners Ass'n, Inc. v. Nat'l Bank of Washington, 699 F.2d 1274, 1278 n. 6 (D.C. Cir. 1983); but see First Chicago Int'l v. United Exchange Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988) (holding that filing an affidavit is not essential to preserve Rule 56(f) contention as long as the district court was alerted to the need for further discovery). In this case, counsel for Plaintiff attached a Rule 56(f) affidavit, see Pl.'s Opp'n to Def.'s Mot. to Dismiss, Ex. D (Decl. of Joel P. Bennett), and made great reference in other filings as to the lack of discovery and its impact on Defendant's motion. See Pl.'s Response Issue III(B) ¶¶ 1-6, 13, 16-20; Pl.'s Opp'n to Def.'s Mot. to Dismiss at 13-14. The party seeking additional discovery bears the burden of identifying the facts to be discovered that would create a triable issue and the reasons why the party cannot produce those facts in opposition to the motion. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 248 N.8 (D.C. Cir. 1999). It must also show a reasonable basis to suggest that discovery might reveal triable issues of fact. Carpenter v. Fed. Nat'l Mortgage Ass'n, 174 F.3d 231, 237 (D.C. Cir. 1999). Plaintiff's filings, while not the model of precision, certainly meet these standards.

As such, the Court concludes that (1) it lacks a full record containing all facts relevant to Plaintiff's claims that would allow it to make a fully informed decision on the merits of Defendant's motion for summary judgment and (2) Plaintiff has not been afforded a sufficient opportunity to test the quality of his claims, plumb the depths of the relevant witnesses, and fully investigate his alleged mistreatment. While some of these witnesses have given testimony in the context of Plaintiff's EEOC complaint relating to his non-selection, the plaintiff is entitled to "a fresh, independent determination of the `matter' at stake," as "the court's inquiry is not limited to or constricted by the administrative record, nor is there any deference due the agency's conclusion." Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987). While Defendant asks that the court use Rule 56(d), in the alternative, to commit summary adjudication for certain facts, the Court declines Defendant's invitation, as at this stage it appears that virtually all of the decisive facts relating to Plaintiff's claims remain controverted.⁹ Moreover, it also appears that some of the facts that Defendants claim are uncontroverted actually have not been conceded. Compare Def.'s Reply at 17 (suggesting that "plaintiff does not dispute that the selectees are qualified for the position") with Pl.'s Response Issue III(B) ¶¶ 1-6, 13, 16-20 (essentially admitting only that Ms. Scinto, Mr. Taubenblatt, and Mr. Carlson testified as such). Accordingly, with so many facts still in dispute and so much discovery left to be done, the Court shall deny Defendant's motions under Rule 56(f) and 56(d).

9 In subsequent filings, however, Plaintiff will remain bound by his Responses to Defendant's Statement of Material Facts. However, the Court notes that Defendant's Statement of Material Facts Not in Dispute, especially as they relate to Plaintiff's ADEA and Title VII claims regarding non-selection, does not address — in large part — the decisive factors considered in a summary judgment decision.

IV: CONCLUSION

For the reasons set forth herein, the Court shall deny Defendant's Motion to Dismiss as it relates to Count I of the Fifth Amended Complaint, Plaintiff's EPA claim; however, the Court shall grant Defendant's Motion to Dismiss Counts II (ADEA) and III (Title VII) of the Fifth Amended Complaint as they relate to Plaintiff's claim of "unequal pay for equal work." Moreover, the Court shall deny Defendant's Motion for Summary Judgment under Rule 56(c) and Motion for Summary Adjudication under Rule 56(d), but shall grant Plaintiff's Rule 56(f) for discovery relating to his remaining claims. An Order accompanies this Memorandum Opinion.