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Stumm v. McDonald

United States District Court, W.D. Wisconsin

September 26, 2016




         Plaintiff Allen Bedynek Stumm proceeding pro se was granted leave to proceed on an Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), claim against defendant Robert A. McDonald, the Secretary of the U.S. Department of Veterans Affairs. (9/11/14 Order (dkt. #9).) Plaintiff received a favorable decision by the Office of Federal Operations with a remedial action requiring the VA retroactively to place plaintiff into the position for which he has applied. (Id. at p.3.) Before the court is defendant's motion to dismiss plaintiff's claim on the basis that: (1) plaintiff has already sought enforcement of the order through administrative proceedings, limiting him to a de novo proceeding here for which he has not been granted leave to proceed (and even if granted leave, would be time-barred); and (2) plaintiff cannot pursue an EPA claim as a "prospective employee." (Dkt. #13.) For the reasons explained below, the court will deny defendant's motion in its entirety.

         Also before the court are two motions by defendant for a protective order and for an order staying discovery. (Dkt. ##20, 25.) The court will grant defendant's motion for a protective order, but will deny his motion to stay discovery as mooted by the court's order on defendant's motion to dismiss. For the same reason, the court will deny plaintiff's motion seeking an order barring interference by defendant's counsel in his attempts to seek discovery directly from VA employees. (Dkt. #26.) Finally, plaintiff has also recently filed a motion for assistance in recruiting pro bono counsel. (Dkt. #24.) Because plaintiff has failed to meet the prerequisite of demonstrating that he has requested representation from at least three attorneys who have denied his request, the court will deny plaintiff's motion at this time, but without prejudice to him refiling his request once he can make this threshold showing.[1]


         I. Defendant's Motion to Dismiss

          Defendant's brief in support of his motion to dismiss Bedynek Stumm's complaint is succinct. Indeed, the argument section is limited to three pages. The brevity of defendant's motion is not in and of itself concerning -- there is no reason to waste paper if the bases for the motion have solid footing in the law. Here, however, defendant at worst misstates the law or at best is misleadingly ambiguous with respect to two areas of the law, both of which are central to defendant's motion. Likely, these errors could reflect simple sloppiness on the part of the United States Attorney representing defendant, rather than attempt to exploit the pro se status of plaintiff, hoping that the court would accept defendant's arguments at face value, which of court this court should be able to do. With that initial observation aside, the court will address defendant's two core bases for dismissal in turn.

         A. Availability of Enforcement Action

         First, defendant contends that plaintiff must choose between either: (1) "petitioning] the EEOC for enforcement of its order"; or (2) filing a civil action in a federal district court in which he "must re-litigate his claims - both liability and damages." (Def.'s Br. (dkt. #14) 3-4.) Defendant reasons that "[b]ecause Plaintiff cannot challenge the EEOC's remedy alone (or its decision on Defendant's compliance with the EEOC order), Plaintiff is left solely with a de novo review of his discrimination and retaliation claim, " on which the court did not grant him leave to proceed on that claim. (Id. at 4.; see also Def.'s Reply (dkt. #19) ("[He] must re-litigate his discrimination claims, not just his claim that Defendant did not provide the remedy that the EEOC ordered.").)

         In support of defendant's position that the only civil action available to plaintiff in federal court requires re-litigation of the prior finding of liability, defendant points to Timmons v. White, 314 F.3d 1229, 1231 (10th Cir. 2003), which defendant represents held "that plaintiff could not file a civil action to only challenge the remedy granted by the EEOC and that the district court must review liability and damages de novo." (Def.'s Br. (dkt. #14) 4.) To the contrary, in Timmons, the Tenth Circuit listed three options available to an aggrieved employee, which included "seek[ing] judicial review of the agency's refusal to implement the ordered relief." Timmons, 14 F.3d at 1232 (quoting 29 C.F.R. § 1614.503(g)). In other words, an employee is not solely limited to re-litigating in federal court the prior finding of liability, rather the employee may sue for enforcement of the order, which is exactly what plaintiff has elected to do in this case.

         Nor is the Tenth Circuit's decision in Timmons an outlier. While the Seventh Circuit has not addressed this question -- at least as far as this court could find -- other courts have uniformly embraced a federal action to enforce an order, as distinct from a de novo proceeding. As the Ninth Circuit explained in Carver v. Holder, 606 F.3d 690 (9th Cir. 2010), an employee who prevails on his claim in the administrative process "has two avenues in federal court." Id. at 696. "First the employee can bring an enforcement action against the agency." Id. In such an action, the sole issue is "whether the federal employee has complied with the . . . remedial order." Id.; see also Laber v. Harvey, 438 F.3d 404, 417 (4th Cir. 2006) (en banc) (describing right of aggrieved employee to "seek judicial enforcement of the OFO's underlying decision by filing a suit for 'enforcement of the [OFO's] decision'"); Ellis v. England, 432 F.3d 1321, 1324 (11th Cir. 2005) ("On conclusion of the administrative process, a federal employee who prevails may sue in a federal district court to enforce an administrative decision with which an agency has failed to comply"); Eneje v. Ashcroft, No. 02-5217, 67 F.App'x 901, 905, 2003 WL 21456259, at *4 (6th Cir. June 19, 2003) (describing "noncompliance claim"); Taylor v. United States, 80 Fed. CI. 376, 381 (Fed. CI. 2008) (describing "complainant's right to file a civil action for enforcement of the decision pursuant to" several federal statutes, including the EPA).

         Relatively recently, the Federal Circuit also rejected the very argument defendant presents here:

According to the Government, "[t]here is no provision [under EEOC regulations] that allows a federal employee to bring an enforcement action in district court if the EEOC has determined that the agency is in compliance with the EEOC's Final Order." Id. While there may not be an EEOC regulation that expressly authorizes judicial enforcement actions, the absence of an agency regulation does not per se determine the jurisdiction of a federal court to hear an appeal from the agency. Indeed, the regulations provide that "[a] complainant may petition the Commission for enforcement of a decision issued under the Commission's appellate jurisdiction." 29 C.F.R. § 1614.503(a) (emphasis added). Thus, the regulations clearly do not confine enforcement actions to the EEOC, as the Government contends. Simply because an employee chooses to initially pursue enforcement through the EEOC does not preclude her from later seeking enforcement in a court of competent jurisdiction.

VanDesande v. United States, 673 F.3d 1342, 1346 (Fed. Cir. 2012).[2]

         Relatedly, defendant argues that a de novo Equal Pay Act claim is time-barred. (Def.'s Br. (dkt. #14) 5-6.) An EPA claim must be filed within two years from the alleged violation, see 29 U.S.C. § 255(a), and the filing of an administrative appeal or complaint does not toll the statute of limitations, see 29 C.F.R. § 1614.408. While defendant correctly restates the applicable statute and regulation, however, his argument only applies if plaintiff were pursuing (and only could pursue) a de novo review of defendant's offers of employment, which were all made before August 1, 2008. Instead, as described above, plaintiff is pursuing an enforcement action, and defendant fails to explain how that claim is untimely. See Ellis, 432 F.3d at 1324 (an enforcement action may be brought "[o]n ...

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