Metzinger v. United States

In the United States Court of Federal Claims

REBECCA METZINGER, M.D.,

Plaintiff,

No. 23-332 C

v.

(Filed October 25, 2024)

THE UNITED STATES,

Defendant.

Marie O. Riccio, Law Offices of Marie Riccio, New Orleans, LA, for plaintiff

Patrick S. Angulo, Civil Division, United States Department of Justice, Washington, DC, for de-

fendant

OPINION AND ORDER

Granting in Part and Denying in Part the Government’s

Motion to Dismiss the Transfer Complaint

and Transferring in Part

SILFEN, Judge.

Rebecca Metzinger seeks back pay and other damages under the Equal Pay Act for sex-

based wage discrimination and for retaliation by her employer. Dr. Metzinger, an ophthalmologist,

alleges that her employer, the Department of Veterans Affairs, willfully paid her less than her male

supervisees for approximately ten years. When she first discovered the pay discrepancy in 2017,

she filed a complaint with the Equal Employment Opportunity Commission. Two years later, she

filed a civil suit in Louisiana district court. She alleges that her employer retaliated against her in

response to those complaints. Part of the Louisiana case was eventually transferred to this court.

The government moves to dismiss Dr. Metzinger’s complaint in this court. The government

argues that under the Equal Pay Act’s statute of limitations, this court lacks jurisdiction over her

wage-discrimination claims arising from paychecks issued more than two years before she filed

1

her district court case. And any surviving claims, the government argues, must also be dismissed

for failing to state a claim because Dr. Metzinger has not alleged a prima facie case of discrimina-

tion. The government also argues that Dr. Metzinger’s retaliation claim alleges a tort and is there-

fore outside this court’s jurisdiction.

Dr. Metzinger’s complaint establishes a prima facie case of discrimination for each

paycheck that was issued within the limitations period. Her Equal Pay Act claims arising from

paychecks issued outside the limitations period are time barred and must be dismissed. Damages

for those earlier paychecks are likewise barred in this court. The court also has to determine the

applicable limitations period; the Equal Pay Act allows an injured party to sue within two years of

when her claim accrues, but that time is extended to three years if the employer’s violation is

willful. Here, Dr. Metzinger has plausibly alleged that the government willfully violated the Equal

Pay Act, so she may proceed to litigate claims that accrued during an additional third year. Dr.

Metzinger’s accompanying retaliation claim alleges a tort and is beyond this court’s jurisdiction.

While the retaliation claim does not belong in this court, it does belong back in Louisiana district

court, where Dr. Metzinger first filed her suit and could have litigated the retaliation claim.

This court therefore grants in part and denies in part the government’s motion to dismiss.

The court dismisses Dr. Metzinger’s wage-discrimination claims covering paychecks issued be-

fore May 21, 2016, and transfers Dr. Metzinger’s retaliation claim to the Louisiana district court.

The court also denies Dr. Metzinger’s more recent motion to direct the government to negotiate

in good faith, or in the alternative, to relieve the parties of their obligation to participate in settle-

ment negotiations, discussed below.

2

I. Background

A. Dr. Metzinger’s pay history and complaint at the Equal Employment Oppor-

tunity Commission

Dr. Metzinger is a board-certified ophthalmologist. ECF No. 99 at 4 [¶6]. 1 Since 2008, she

has been the Chief of Ophthalmology at the New Orleans Veterans Medical Center, run by the

Department of Veterans Affairs (VA). Id. at 4-5 [¶¶6-7]. When Dr. Metzinger was first hired in

2008, her salary was $240,000 per year. Id. at 5 [¶7]. In August 2017, it was approximately

$261,000 per year. Id. at 18 [¶31] (alleging a salary of $261,745 and $261,045 in different places).

Dr. Metzinger alleges that she has suffered sex-based wage discrimination since 2008 because she

was consistently paid less than her supervisees, all of whom were male. Id. at 12 [¶18], 16 [¶27].

From 2008 to 2016, “Dr. Metzinger consistently received annual performance evaluations

that classified her performance as ‘exceptional.’” ECF No. 99 at 8 [¶12]. When the VA opened a

new eye clinic in 2017, Dr. Metzinger had principal responsibility for opening and supervising it.

Id. at 5 [¶8]. She also maintained her responsibilities as section chief and continued to see patients.

Id. at 5-7 [¶9].

On May 22, 2017, a surgery section administrator gave Dr. Metzinger a written perfor-

mance evaluation for the 2016 fiscal year. ECF No. 99 at 8 [¶12]. The performance evaluation

rated Dr. Metzinger “fully successful” in all aspects of her performance except leadership; on

leadership she was rated “unacceptable.” Id. at 9 [¶12].

Dr. Metzinger discussed the evaluation with the VA’s human resources supervisor. ECF

No. 99 at 9-10 [¶13]. In that meeting, she shared that she had recently learned that male supervisees

had salaries higher than hers and disclosed that she had experienced acts of hostility and

1

The court accepts as true the facts alleged in Dr. Metzinger’s complaint for purposes of this

decision. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

3

harassment from her supervisor. Id. at 9-10 [¶13]. The human resources supervisor told Dr. Metz-

inger that, before this evaluation, he had not received any reports that Dr. Metzinger’s performance

was unacceptable, but the newly hired chief of surgery, James Smith, had said that he would like

to remove Dr. Metzinger and give her position “to someone else.” Id. at 10 [¶¶13-14].

Acting on human resources’ advice, Dr. Metzinger filed a complaint with the Equal Em-

ployment Opportunity Commission (EEOC) on June 20, 2017. ECF No. 99 at 10 [¶13], 11 [¶16];

ECF No. 117-1 at 11 (Dr. Metzinger’s Form 4939 was filed later, on October 5, 2017). Her EEOC

complaint alleged sex-based wage discrimination, retaliation in violation of the Equal Pay Act,

and violations of Title VII. ECF No. 99 at 11 [¶16]. The EEOC investigated her complaint and

issued a notice accepting her Equal Pay Act and Title VII claims. Id. at 11-12 [¶¶16-17]. The

EEOC assigned her case to an administrative law judge, discovery began, and a trial date was set.

Id. at 11-12 [¶17].

Through discovery, Dr. Metzinger learned that in the time she had been employed at the

VA, the VA should have but did not hold five “market pay panels”—one every two years—on her

behalf. ECF No. 99 at 17 [¶30]. Market pay panels allow the VA to give employees additional pay

based on market conditions. Id. at 17 [¶28]. Within that same period, she alleges, the VA held

panels and gave market pay increases to male physicians. Id. at 17 [¶29]; ECF No. 117 at 17. As

a result, those male physicians, subordinate to her, “were being paid more than she was although

she was the Chief of the Section.” ECF No. 99 at 17 [¶29].

Dr. Metzinger names four male physicians as comparators: James Diamond, Arley Jara-

millo, Jared Vincent, and Victor Carriere. ECF No. 99 at 20-24 [¶¶35-44]; see ECF No. 117-2 at

2. Dr. Metzinger alleges that, in discovery at the EEOC, the VA provided manipulated salary in-

formation for those comparators that made it look like their salaries were “far lower than the actual

4

wages they were receiving.” ECF No. 99 at 20 [¶34]; ECF No. 117 at 17-22 (stating that the VA’s

salary spreadsheet did not match employees’ SF-50 forms and pay panel documents, and that the

spreadsheet underreported employees’ actual take-home pay). In 2017, Dr. Diamond, a staff phy-

sician (classified as Tier I), made roughly $28,000 more than Dr. Metzinger, a section chief (clas-

sified as Tier II), even though he performed fewer surgeries, saw fewer patients, and had not been

assigned additional responsibilities. ECF No. 99 at 20-23 [¶¶35-40]. Dr. Jaramillo, a Tier I physi-

cian who had only been a staff physician for four years, made roughly $20,000 more than Dr.

Metzinger did. Id. at 23-24 [¶43]. Dr. Metzinger also alleges that two of her subordinates, Dr.

Vincent and Dr. Carriere, both Tier I physicians who had fewer credentials and fewer responsibil-

ities than Dr. Metzinger, had salaries nearly the same as hers. Id. at 23 [¶¶41-42]. According to Dr.

Metzinger, Dr. Vincent was fired in 2017 for misfeasance. Id. at 23 [¶41].

Around September 2017, after filing the EEOC complaint, Dr. Metzinger received her first

market pay panel. ECF No. 99 at 18 [¶31]; ECF No. 117-4 (pay panel decision dated August 2017).

The panel awarded her a nearly $40,000 pay increase, setting her salary at $300,000. ECF No. 99

at 18 [¶31]. According to Dr. Metzinger, the pay panel set her salary increase “to be effective June

16, 2016,” the date her most recent market pay panel should have convened. Id. (emphasis omit-

ted). 2 But Dr. Metzinger “did not begin to fully receive the Market Pay increase until after Janu-

ary[] 2018.” Id. at 19 [¶32] (emphasis omitted). Dr. Metzinger alleges that, after an audit, the

assistant deputy of human resources believed that the wrong effective date (June 26, 2017) was

input into the system. Id. at 18-19 [¶32]. According to Dr. Metzinger, the government took the

2

Dr. Metzinger has not provided any documentation that shows the effective date. Nothing in the

market pay panel decision gives that date. ECF No. 117-4.

5

position that her adjusted salary should be “effective only as of June 26, 2017,” a year after the

pay panel’s effective date. Id. at 19 [¶32] (emphasis omitted).

In October 2017, someone filed an anonymous complaint against Dr. Metzinger. ECF No.

99 at 27-28 [¶49]. The VA’s Office of Inspector General conducted a formal investigation. Id. at

28 [¶49]. Dr. Metzinger alleges that Dr. Diamond filed the complaint and was working with Dr.

Smith, who wanted to replace her. Id. at 10 [¶14], 28 [¶49]. Before that complaint, human resources

never received any other “complaints or any disciplinary warnings against [Dr. Metzinger], not

even verbal counseling.” Id. at 28 [¶49]. According to Dr. Metzinger, the investigators concluded

that the complaint was baseless and cleared her of all charges. Id.

After Dr. Metzinger’s EEOC complaint, she alleges that the VA wrongfully prevented her

from sitting on compensation and pay panels to review her supervisees, as she had before and as

federal regulation requires. ECF No. 99 at 29-30 [¶52]. She also alleges that her supervisor retali-

ated against her by prompting the American Legion to cancel its 2017 award ceremony where she

was scheduled to receive an award for her work on behalf of veterans. Id. at 27 [¶48(c)].

After Dr. Metzinger’s Equal Pay Act claim was transferred to this court in 2023, discussed

more below, someone filed a second anonymous complaint against Dr. Metzinger, prompting an-

other investigation. ECF No. 99 at 29 [¶50]. The VA’s Office of Inspector General again investi-

gated the complaint and dismissed it as groundless. ECF No. 108 at 15; ECF No. 119 at 49:1-18.

Dr. Metzinger alleges that both investigations, in addition to other post-EEOC-complaint actions,

were acts of retaliation in response to her complaints of discrimination. ECF No. 99 at 26-29

[¶¶49-50].

B. Dr. Metzinger’s history in court

On May 21, 2019, while Dr. Metzinger’s EEOC case was pending, she filed a complaint

in the United States District Court for the Eastern District of Louisiana alleging sex-based wage

6

discrimination under the Equal Pay Act. ECF No. 1 (Metzinger v. Department of Veterans Affairs,

No. 19-cv-10614, ECF No. 1 (E.D. La. May 21, 2019)). Dr. Metzinger alleged discrimination

starting in 2008 and alleged that, despite being awarded a pay adjustment with some back pay in

January 2018, she still had not received that back pay for July 2016 through July 2017. ECF No.

1 at 6-8 [¶¶13-16]; ECF No. 119 at 71:4-20.

Dr. Metzinger thought her Equal Pay Act claims at the EEOC would be dismissed based

on her filing suit in court under the Equal Pay Act but thought the EEOC still had jurisdiction over

her Title VII claims. See ECF No. 117 at 7-12. The EEOC administrative law judge, however,

dismissed the entire administrative proceeding, including her Title VII claims. Metzinger v. Robert

Wilkie, Secretary, Department of Veterans Affairs, No. 461-2018-00121X (EEOC Oct. 25, 2019);

ECF No. 117-1 at 31-36 (copy of decision). The administrative law judge reasoned that a federal

employee must choose between an administrative hearing and a federal civil action. See ECF No.

117-1 at 33-34. The administrative law judge stated that, under EEOC regulations, if “at least 180

days have passed since the filing of [an EEOC] complaint” “that is the basis of a pending civil

action in a United States District Court,” the EEOC complaint “shall be dismissed.” Id. (citing 29

C.F.R. §§ 1614.407(b), 1614.107(a), 1614.409). The administrative law judge found that Dr. Metz-

inger was alleging the same factual bases of discrimination in both the EEOC and district court,

that her claims were “inextricably linked,” and that “all the claims should be heard in one forum.”

Id. at 33-34. Dr. Metzinger appealed the dismissal to the Office of Employment Discrimination

Complaint Adjudication, which affirmed, stating that the dismissal was “factually and legally cor-

rect.” Id. at 68-70.

Shortly after the EEOC terminated Dr. Metzinger’s case, she filed a separate action in the

district court alleging a Title VII violation (Metzinger v. Department of Veterans Affairs, No. 20-

7

cv-599, ECF No. 1 (E.D. La. Feb. 18, 2020)), and the case was consolidated with her original

Equal Pay Act district court suit. ECF No. 25.

The government moved to dismiss Dr. Metzinger’s Equal Pay Act claim for lack of juris-

diction, arguing that because Dr. Metzinger sought more than $10,000 in damages against the

government, under the Tucker Act, the Court of Federal Claims had exclusive jurisdiction over

that claim. ECF No. 28. The district court agreed and ordered a transfer to this court. ECF No. 49.

Dr. Metzinger appealed the transfer order to both the Fifth Circuit and the Federal Circuit. ECF

No. 51 (notice of appeal directed to both circuits); ECF No. 54 (amended notice of appeal); ECF

No. 56 (notice of appeal from interlocutory order). The Fifth Circuit dismissed the appeal for lack

of appellate jurisdiction. ECF No. 75.

While the Federal Circuit appeal was pending, the government changed its position, and

the parties informed the Federal Circuit that they agreed that “the [district court] possesse[d] juris-

diction to hear her case, and that it erred when it concluded that it did not.” Metzinger v. Depart-

ment of Veterans Affairs, Case No. 20-1906, ECF No. 20-1 at 2 (Fed. Cir. Aug. 26, 2020). Despite

the parties’ agreement, the Federal Circuit affirmed the district court’s transfer order. The court of

appeals explained that the Tucker Act requires that, “[w]here the Federal Government is sued for

damages or back pay under [29 U.S.C.] § 216(b)” for $10,000 or more, “the court of competent

jurisdiction can only be … the Court of Federal Claims.” ECF No. 89-1 at 11 (Metzinger v. De-

partment of Veterans Affairs, 20 F.4th 778, 785 (Fed. Cir. 2021)) (cleaned up).

The district court then separated Dr. Metzinger’s claims and transferred only the Equal Pay

Act claim to this court. ECF No. 92; ECF No. 117-5 at 11. The district court stayed and adminis-

tratively closed the Title VII claim until this case is resolved. ECF No. 119 at 61:23-62:12; see

Metzinger v. Department of Veterans Affairs, No. 19-cv-10614, Docket (E.D. La.) (noting the case

8

status as “closed, … stayed, transfer); Metzinger v. Department of Veterans Affairs, No. 20-cv-

599, ECF No. 10 (E.D. La. Nov. 10, 2020).

After the transfer, Dr. Metzinger filed a new complaint in this court. ECF No. 99. The new

complaint—called a transfer complaint—reiterates her sex-based wage discrimination claim under

the Equal Pay Act, alleges that the VA’s conduct was “willful” as defined under the Equal Pay

Act, and seeks back pay back to June 2016 and other damages. Compare ECF No. 1 with ECF No.

99; see also ECF No. 99 at 18-19 [¶¶31-33], 30 [¶53], 32-33 [¶56]. The transfer complaint also

adds retaliation under the Fair Labor Standards Act, 29 U.S.C. § 215. ECF No. 99 at 25-30 [¶¶46-

52].

The government moved to dismiss Dr. Metzinger’s transfer complaint (ECF No. 106), and

the court ordered supplemental briefing on three specific issues (ECF No. 113). After the parties

filed those briefs, the court held an oral argument on the motion to dismiss. The court then ordered

the parties to engage in settlement discussions every thirty days. ECF No. 116. About two months

later, Dr. Metzinger filed a motion requesting that the court direct the government to negotiate in

good faith or relieve the parties from their obligation to participate in settlement discussions. ECF

No. 121.

II. Discussion

Dr. Metzinger seeks back pay and liquidated damages under the Equal Pay Act (29 U.S.C.

§§ 206(d), 216(b)), 3 alleging sex-based wage discrimination and retaliation for filing complaints

with human resources, the EEOC, and the federal district court. ECF No. 99. The government

moves to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which

3

The Equal Pay Act is an amendment to the Federal Labor Standards Act, 29 U.S.C. § 201 et seq.

Corning Glass Works v. Brennan, 417 U.S. 188, 190 (1974).

9

relief may be granted. ECF No. 106; see Rules of the Court of Federal Claims (RCFC) 12(b)(1),

12(b)(6).

On a motion to dismiss for lack of jurisdiction under rule 12(b)(1), the “court must accept

as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences

in favor of the plaintiff.” Trusted Integration, Inc., 659 F.3d at 1163. If the court determines that

it lacks subject-matter jurisdiction, it must dismiss the action. RCFC 12(b)(1), (h)(3); see Steel Co.

v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). A “plaintiff bears the burden of

establishing subject matter jurisdiction by a preponderance of the evidence.” Estes Express Lines

v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014).

This court’s jurisdiction is primarily defined by the Tucker Act, which provides the court

with exclusive jurisdiction to decide specific types of monetary claims against the United States.

Kanemoto v. Reno, 41 F.3d 641, 644 (Fed. Cir. 1994); 28 U.S.C. § 1491(a)(1). The Tucker Act

provides the court with “jurisdiction to render judgment upon any claim against the United States

founded … upon the Constitution, or any Act of Congress or any regulation of an executive de-

partment, … or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.

§ 1491(a)(1). The Equal Pay Act is a money-mandating statute over which this court has jurisdic-

tion. Cooke v. United States, 85 Fed. Cl. 325, 341 (2008); see Jentoft v. United States, 450 F.3d

1342, 1348-49 (Fed. Cir. 2006).

In Equal Pay Act cases, this court’s jurisdiction is limited to suits “commenced within two

years after the cause of action accrued … except that a cause of action arising out of a willful

violation may be commenced within three years after the cause of action accrued.” 29 U.S.C.

§ 255(a). An Equal Pay Act suit “shall be forever barred unless commenced” within the relevant

two- or three-year window. Id.

10

Willful conduct is “not merely negligent.” McLaughlin v. Richland Shoe Co., 486 U.S.

128, 133 (1988). “To obtain the benefit of the 3-year exception,” Dr. Metzinger must prove that

the government “either knew or showed reckless disregard for the matter of whether its conduct

was prohibited by the statute.” Id. at 135, 133. “All of the facts and circumstances surrounding the

violation are taken into account in determining whether a violation was willful.” 5 C.F.R.

§ 551.104. Dr. Metzinger “bears the burden of proving the willfulness of the employer’s [Fair

Labor Standards Act] violations.” Adams v. United States, 350 F.3d 1216, 1229 (Fed. Cir. 2003).

On a motion to dismiss for failure to state a claim under this court’s rule 12(b)(6), the court

must accept well-pleaded factual allegations as true and draw all reasonable inferences in the plain-

tiff’s favor. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). The court is not re-

quired to accept the parties’ legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “A complaint must be dis-

missed under Rule 12(b)(6) when the facts asserted do not give rise to a legal remedy, or do not

elevate a claim for relief to the realm of plausibility.” Laguna Hermosa Corp. v. United States,

671 F.3d 1284, 1288 (Fed. Cir. 2012) (citations omitted).

In an Equal Pay Act case, the plaintiff must establish a prima facie case of pay discrimina-

tion by showing that her employer pays workers of one sex more than workers of another sex for

equal work. Corning Glass Works, 417 U.S. at 196; Moore v. United States, 66 F.4th 991, 997

(Fed. Cir. 2023). The burden then shifts to the employer to show that the pay differential is justified

under one of four statutory exceptions: seniority, merit, production quality or quantity, or a factor

other than sex. Corning Glass Works, 417 U.S. at 196-97.

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A. The court lacks jurisdiction over Dr. Metzinger’s Equal Pay Act claims arising

from paychecks issued before May 21, 2016

The government moves to dismiss Dr. Metzinger’s claims arising from alleged violations

that occurred before May 21, 2017—two years before she filed her wage-discrimination claim in

district court. ECF No. 106 at 7-9. The government argues that claims predating May 21, 2017,

are untimely under the Equal Pay Act’s statute of limitations, 29 U.S.C. § 255(a), and that Dr.

Metzinger cannot recover damages for allegedly discriminatory paychecks issued before that two-

year window. Id.

Dr. Metzinger responds that her complaint is timely and that she may recover damages

back to her first unequal paycheck, in 2008, because the statute of limitations is not separately a

limitation on damages. ECF No. 108 at 34-40; see ECF No. 115 at 1-8. She also disagrees with the

government about when her cause of action accrued, starting the statute-of-limitations clock. ECF

No. 108 at 3, 21-24. She further argues that, even if the statute of limitations is a limitation on

damages, the date she filed the EEOC complaint, not the date she filed the Louisiana district court

action, is the relevant filing date to stop the statute-of-limitations clock. Id. at 16-26. Therefore,

she argues, this court at least has jurisdiction over all claims after June 2014—three years before

her June 2017 EEOC complaint. ECF No. 99 at 19 [¶33]. And regardless of the relevant filing date,

Dr. Metzinger asserts that she is entitled to section 255(a)’s three-year limitations period—rather

than the two-year default limitations period—because the government willfully paid her less than

her male colleagues and supervisees. ECF No. 108 at 27-34.

The Equal Pay Act includes both a statute of limitations, 29 U.S.C. § 255(a), and a damages

provision, 29 U.S.C. § 216(b). The statute of limitations addresses when a pay discrimination ac-

tion “may be commenced.” 29 U.S.C. § 255(a). The damages provision states that “[a]ny employer

who violates the provisions of [the Equal Pay Act] … shall be liable to the employee or employees

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affected in the amount of their unpaid minimum wages … and in an additional equal amount as

liquidated damages.” 29 U.S.C. § 216(b). Thus, the damages provision does not include a time

limit. Courts have routinely merged the timeliness inquiry with the question of damages, as dis-

cussed below, holding that damages are unavailable for any paycheck issued before the action

could be commenced. The parties’ briefs in this case merge those concepts as well. This opinion

will address each separately.

1. Timeliness

The parties agree that each discriminatory paycheck Dr. Metzinger received constitutes a

discrete wrong under the Equal Pay Act for purposes of when a cause of action accrues under the

statute of limitations. ECF No. 106 at 7-9; see ECF No. 108 at 21-25; see also id. at 34-40. But the

parties’ theories differ. The government believes that a cause of action for each paycheck accrues

when that paycheck is issued. ECF No. 106 at 7-9. Thus, the government argues that this court

lacks jurisdiction over any of Dr. Metzinger’s paychecks issued more than two (or three, if the

violation was willful) years before she filed her lawsuit. Id. (citing Lange v. United States, 79 Fed.

Cl. 628, 630 (2007) and National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002));

ECF No. 110 at 1-8, 12 (also citing Santiago v. United States, 107 Fed. Cl. 154, 156, 158-60 (2012)

and Weber v. United States, 71 Fed. Cl. 717, 718, 726 (2006)).

Dr. Metzinger argues that her Equal Pay Act cause of action did not accrue until January

2018, the date her paycheck finally complied with the Equal Pay Act, starting the clock on the

statute of limitations. ECF No. 108 at 24. Because she filed her district court case less than two (or

three) years later, she argues that her complaint is timely. See id. at 3-4, 10, 24, 35-36, 40.

The government is correct that an Equal Pay Act claim accrues each time a discriminatory

paycheck is issued and that each discriminatory paycheck is considered a discrete act rather than

13

an incident of a continuing violation. Thus, every time an employer issues an unequal paycheck, a

complainant has two or three years from that date to file an Equal Pay Act claim for that paycheck.

As an initial matter, for Equal Pay Act claims, the relevant date is the date the violation

occurred, not the date the complainant discovered it. Jordan v. United States, 122 Fed. Cl. 230,

239 (2015) (citing Santiago, 107 Fed. Cl. at 159; Lange, 79 Fed. Cl. at 631; Weber, 71 Fed. Cl. at

725); Weidenbach v. Casper-Natrona County Health Department, 563 F. Supp. 3d 1170, 1178-79

(D. Wyo. 2021); 45C Am. Jur. 2d Job Discrimination § 1891.

Each discriminatory paycheck is a discrete violation. In Morgan, the Supreme Court stated

that, in Title VII cases, “each week’s paycheck that delivered less to a black [person] than to a

similarly situated white [person] is a wrong actionable under Title VII.” 536 U.S. at 112 (marks

omitted). The Supreme Court then explained that “discrete discriminatory acts” like individual

weekly paychecks (id. at 112) “are not actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Id. at 113.

The Federal Circuit has applied that concept to pay cases generally, adopting the Court of

Claims’s view that where “payments are to be made periodically, each successive failure to make

proper payment gives rise to a new claim upon which suit can be brought.” Brown Park Estates-

Fairfield Development Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997) (quoting Fried-

man v. United States, 159 Ct. Cl. 1, 8 (1962)). Other circuits and this court have applied the same

analysis to Equal Pay Act cases. E.g., O’Donnell v. Vencor Inc., 466 F.3d 1104, 1113 (9th Cir.

2006); Pollis v. New School for Social Research, 132 F.3d 115, 119 (2d Cir. 1997); Gandy v.

Sullivan County, 24 F.3d 861, 864 (6th Cir. 1994); Nealon v. Stone, 958 F.2d 584, 591 (4th Cir.

1992); Mitchell v. Jefferson County Board of Education, 936 F.2d 539, 548 (11th Cir. 1991);

Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir. 1973); Jordan, 122 Fed. Cl. at 239;

14

Weber, 71 Fed. Cl. at 723-24; see also Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.

618, 640 (2007), overruled by Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, Jan. 29,

2009, 123 Stat. 5 (acknowledging that “the lower courts routinely hear [Equal Pay Act] claims

challenging pay disparities that first arose outside the limitations period” because it is well estab-

lished that under section 255(a) the statute of limitations runs anew for each paycheck).

Thus, an Equal Pay Act claim is timely “as long as at least one forbidden discriminatory

act occurs within the relevant limitations period.” 45C Am. Jur. 2d Job Discrimination § 1891.

Claims may also “be brought for any or all [unequal paychecks] occurring within the limitations

period immediately prior to the commencement of the action,” but claims arising from discrimi-

natory paychecks issued more than two or three years back from the filing date are time-barred.

Id.; 29 U.S.C. § 255(a).

Dr. Metzinger argues that an Equal Pay Act violation, like a hostile work environment,

represents a continuing violation. ECF No. 108 at 10, 34-40; ECF No. 115 at 2-6. Under the con-

tinuing-violation doctrine as applied to a hostile-work-environment claim, a plaintiff may recover

damages all the way back to the first instance of unequal treatment. See Morgan, 536 U.S. at 117-

19. Dr. Metzinger is correct that, before Morgan, courts often categorized Equal Pay Act claims

as “continuing violations.” Nealon, 958 F.2d at 592 (“This continuing violation principle that ap-

plies … [to] discrimination violations of Title VII applies also to sex discrimination allegations

under the Equal Pay Act.”); Pollis, 132 F.3d at 119; Gandy, 24 F.3d at 864; Miller v. Beneficial

Management Corp., 977 F.2d 834, 844 (3d Cir. 1992); Hodgson, 475 F.2d at 1050. But in Morgan,

the Supreme Court clarified that serial violations (536 U.S. at 114), including repeated unequal

paychecks (id. at 112), are different from hostile-work-environment claims that “are based on the

cumulative effect of individual acts” and can support recovery even for acts that occurred outside

15

the limitations period (id. at 115-18); accord O’Donnell, 466 F.3d at 1113 (Ninth Circuit explain-

ing, post-Morgan, that “although the [Equal Pay Act] violations may have been continuing, the

continuing violation doctrine does not permit [an employee] to recover back pay for discriminatory

pay periods outside the applicable statute of limitations period”). As the Third Circuit explained,

Morgan’s distinction between “continuing violations and discrete acts is not an artifact of Title

VII, but is rather a generic feature of federal employment law.” O’Connor v. City of Newark, 440

F.3d 125, 128 (3d Cir. 2006) (marks omitted).

The timeliness of an Equal Pay Act claim is therefore measured not from the date of Dr.

Metzinger’s first compliant paycheck, but from the date of her most recent unequal paycheck,

which she alleges was issued not long before January 2018. See ECF No. 108 at 3, 24. No one

disputes that her complaint covering that most recent paycheck is timely. Although Dr. Metzinger

alleges that she has received unequal paychecks since she was hired in 2008, each paycheck con-

stitutes its own Equal Pay Act violation, accruing on the date it was issued. Each time the govern-

ment issued an unequal paycheck, Dr. Metzinger had two (or three) years to file a claim.

The date Dr. Metzinger filed her complaint in district court, rather than her EEOC filing

date, is the relevant filing date under the Equal Pay Act’s statute of limitations. Weber, 71 Fed. Cl.

at 724 n.11; Hickman v. United States, 10 Cl. Ct. 550, 552-53 (1986) (collecting cases and explain-

ing that “the mere filing of an administrative claim does not toll the statute of limitations imposed

by section 255(a)”); 26 Am. Jur. Proof of Facts 3d 269 § 5 (2024 update) (“The limitation period

for bringing an Equal Pay Act lawsuit is not tolled by the filing or pendency of an administrative

charge with a … federal agency”); see also 29 C.F.R. § 1614.408 (“The filing of a complaint or

appeal [at the EEOC] shall not toll the time for filing a civil action.”); Jordan, 122 Fed. Cl. at 240.

That is because “filing an administrative claim is not a mandatory prerequisite to judicial relief”

16

under the Equal Pay Act. Hickman, 10 Cl. Ct. at 553. Dr. Metzinger did not have to exhaust her

administrative remedies before suing in federal court. 29 C.F.R. § 1614.408; Washington County

v. Gunther, 452 U.S. 161, 175 n.14 (1981). The EEOC and courts have independent, concurrent

jurisdiction over Equal Pay Act claims. Hickman, 10 C. Ct. at 553; 29 U.S.C. § 216(b).

And nothing in the Equal Pay Act deprives one venue of jurisdiction when the other venue

is chosen. Dr. Metzinger was “not prevented from pursuing a judicial remedy prior to, or concur-

rently with, administrative relief.” Hickman, 10 Cl. Ct. at 553. The Supreme Court has held that

the filing of administrative proceedings, when the agency and court have concurrent jurisdiction,

does not affect whether a claim is timely in district court. Unexcelled Chemical Corp. v. United

States, 345 U.S. 59, 65-66 (1953); see also Johnson v. Railway Express Agency, Inc., 421 U.S.

454, 460-61, 465-66 (1975) (holding that where Congress gave the complainant the choice of two

independent remedial procedures, the choice of one procedure did not toll the statute of limitations

for the other, and there was “no policy reason that excuse[d] [the complainant’s] failure to take the

minimal steps necessary to preserve each claim independently”).

The concurrent jurisdiction of the EEOC and district court indicates that the EEOC judge

was likely mistaken in believing that the commission lacked jurisdiction over Dr. Metzinger’s

then-pending Equal Pay Act claim once she filed in district court. The EEOC judge, in dismissing

Dr. Metzinger’s case, relied on a regulation that governs appeals of EEOC decisions, not admin-

istrative trials, like Dr. Metzinger’s. ECF No. 117-1 at 31, 33 (citing 29 C.F.R. § 1614.409); see

29 C.F.R. § 1614.409 (“Filing a civil action … shall terminate Commission processing of the ap-

peal.” (emphasis added)). And, regardless of the regulation, the statutory structure requires the

EEOC to hear Equal Pay Act claims concurrently with courts. 29 U.S.C. § 216(b); Hickman, 10

Cl. Ct. at 553. Dr. Metzinger is also correct that Title VII requires a plaintiff to exhaust

17

administrative remedies, and Title VII and Equal Pay Act claims often overlap, so plaintiffs are

encouraged to file at the EEOC first. See 29 C.F.R. § 1614.202 (explaining that Equal Pay Act

claims will be investigated and heard by the EEOC). It appears that Dr. Metzinger’s administrative

claim should not have been dismissed and that she should have been able to recover administra-

tively for earlier violations, under the statute of limitations governing that earlier-filed proceeding.

That premature dismissal can be raised at the EEOC.

The EEOC’s premature dismissal does not, however, change the date this suit was filed.

And Dr. Metzinger does not seek equitable tolling for the paychecks that are outside the limitations

window. See ECF No. 108 at 25-26.

Finally, the parties agree that the date of filing is not the date the case was transferred to

this court. That is, the government does not dispute that Dr. Metzinger gets the benefit of the filing

date in the Louisiana district court, even though she does not get the benefit of the date she filed

her EEOC complaint. ECF No. 106 at 7; see 28 U.S.C. § 1631; Henke v. United States, 60 F.3d

795, 800 (Fed. Cir. 1995). 4

Dr. Metzinger filed her complaint in the Louisiana district court on May 21, 2019. Thus,

Dr. Metzinger has raised a timely Equal Pay Act claim arising from her most recent unequal

paycheck and from every other allegedly unequal paycheck issued two or three years before May

21, 2019. (Whether it is two or three years is addressed next.)

4

Under 28 U.S.C. § 1500, a plaintiff may not file suit in this court if she has pending a suit against

the United States for the same damages in another court, creating a trap for unwary claimants who

have both Title VII and Equal Pay Act claims. Dr. Metzinger has pending a suit in district court

seeking damages under Title VII. But as the Federal Circuit noted, § 1500 does not divest this

court of jurisdiction in this case because Dr. Metzinger filed her Equal Pay Act suit in district court

before she filed her Title VII suit. Metzinger, 20 F.4th at 786 n.8.

18

2. Willfulness

Dr. Metzinger alleges that she is entitled to the three-year limitations period under section

255(a), plus liquidated damages, because the VA willfully violated the Equal Pay Act. ECF No.

99 at 12 [¶19], 30 [¶53(3)], 32-33 [¶56]. Dr. Metzinger argues that to survive this motion to dis-

miss, she need only plausibly allege the government’s willfulness; she need not prove it. ECF No.

108 at 4, 27, 30-32. She argues that she can satisfy that burden by making general allegations of

willfulness and supporting them with circumstantial evidence. Id. at 4, 27 (citing RCFC 9(b),

which permits “intent, knowledge, and other conditions of a person’s mind [to] be alleged gener-

ally”).

The government argues that Dr. Metzinger needs more evidence of willfulness to satisfy

the court’s pleading standards. ECF No. 106 at 7-9 (citing Santiago, 107 Fed. Cl. at 158-60); ECF

No. 110 at 10-12. The government adds that additional post-complaint facts do not help Dr. Metz-

inger because she has not moved to amend her complaint, and regardless, any amendment would

be futile. ECF No. 110 at 12.

To qualify for the three-year statute of limitations, at the motion-to-dismiss stage, Dr.

Metzinger must “plead facts that make entitlement to the willfulness exception plausible.” White-

side v. Hover-Davis, Inc., 995 F.3d 315, 323 (2d Cir. 2021); see Fernandez v. Clean House, LLC,

883 F.3d 1296, 1299-300 (10th Cir. 2018); Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 903

(9th Cir. 2013) (relying on rule 9(b) to distinguish the standard for evaluating willfulness on a

motion to dismiss and the standard on a motion for summary judgment). While “the mere allega-

tion of willfulness is insufficient” (Whiteside, 995 F.3d at 323), Dr. Metzinger need only allege

facts that nudge her claims “across the line from conceivable to plausible” (Twombly, 550 U.S. at

570). “At the pleading stage,” Dr. Metzinger “need not allege willfulness [under the Fair Labor

Standards Act] with specificity.” Rivera, 735 F.3d at 903. Circumstantial evidence can be

19

sufficient to establish “a plausible inference of willfulness at the pleadings stage.” Whiteside, 995

F.3d at 325 n.9.

For example, in Weber, this court declined to dismiss a claim that fell within the three-year

limitations period, without resolving whether the government’s conduct was in fact willful. 71 Fed.

Cl. at 724 & n.12, 726. The court permitted Ms. Weber’s claim to proceed and allowed the gov-

ernment to “reserve[] its right to seek to dismiss any portion of Ms. Weber’s claims that may be

barred by the [Equal Pay Act’s] two-year statute of limitations should she fail in her ultimate bur-

den to prove that the [government] acted willfully.” Id. at 724 n.12. Similarly, in another case, the

court heard “testimony at trial on the period three years prior to the date of [the] plaintiff’s com-

plaint” but “recogniz[ed] that evidence relating to the period more than two years prior to [the]

plaintiff’s complaint would be relevant only if the court found a willful violation of the [Equal

Pay] Act.” Jenkins v. United States, 46 Fed. Cl. 561, 562 n.2 (2000) (marks omitted); see also

Ewer v. United States, 63 Fed. Cl. 396, 402 (2005) (holding that an employee’s complaint plausibly

alleged that the government acted willfully and waiting for trial to decide which actions were will-

ful).

As long as Dr. Metzinger plausibly alleges willful government conduct, she need not actu-

ally prove willfulness until the damages stage of the case. At that stage, she will have to show that

the government acted willfully: knowingly or with reckless disregard for the truth. See McLaugh-

lin, 486 U.S. at 133.

Dr. Metzinger’s transfer complaint plausibly alleges that the government willfully violated

the Equal Pay Act between 2016 and 2019. Dr. Metzinger’s complaint offers more than mere al-

legations and conclusory statements. Dr. Metzinger alleges that although she was consistently

rated as “exceptional” from 2008 through 2017, she never got a market pay panel evaluation and

20

therefore never received any “increases for merit or market pay” within that period. ECF No. 99

at 17 [¶30]. According to Dr. Metzinger, under agency regulations she should have been reviewed

at five market pay panels over the course of those nine years. Id. She alleges that a market pay

panel convened for her only in September 2017, after she initiated complaints about the VA’s

hostile work environment and wage discrimination practices. Id. at 18 [¶31]. According to Dr.

Metzinger, even though the panel determined that she was entitled to a salary increase and back

pay, her paychecks only began to reflect that increase four months later, in January 2018, after the

VA knew it had underpaid her. Id. at 18-19 [¶¶31-32]. Dr. Metzinger further alleges that she still

has not received the back pay she was owed from June 16, 2016, to June 26, 2017, after the VA

knew of the discrepancy. Id. at 19 [¶33].

Dr. Metzinger also alleges willfulness in her male supervisees being given retention bo-

nuses in violation of the rules. According to Dr. Metzinger, Dr. Diamond improperly received

bonuses from 2009 to 2012, without any evidence that he had “superior qualifications” or “docu-

mentation showing that he was earning, in the private sector[,] more money than he was being

offered” by the VA. ECF No. 99 at 20 [¶35]; see ECF No. 108 at 11, 13-14. Dr. Metzinger adds

that the VA knowingly violated protocols by awarding him retention bonuses without first inform-

ing and consulting with Dr. Metzinger, his supervisor. ECF No. 99 at 21 [¶36].

Dr. Metzinger further alleges that when the government responded to discovery requests

for salary information during the EEOC process, human resources “did not provide accurate infor-

mation respecting the other all Tier [I] physicians who she supervised. Instead the numbers pro-

vided were far lower than the actual wages they were receiving.” ECF No. 99 at 20 [¶34]; see ECF

No. 117 at 17-22 (arguing that the VA’s salary spreadsheet underreported others’ take-home pay,

as it did not match their other pay documents).

21

Those allegations, if true, would show that the government knowingly or with reckless

disregard chose to underpay Dr. Metzinger. The government attempts to analogize Dr. Metzinger’s

allegations to the unsubstantiated and conclusory allegations of willfulness that this court found

insufficient to overcome a motion to dismiss in Santiago, 107 Fed. Cl. at 160-61. ECF No. 106 at

8. But in Santiago, the plaintiff alleged only that his employer did not respond to his complaints

and that his EEOC supervisor promised “to do something about” his unequal pay concerns but

never did. 107 Fed. Cl. at 160-61. Dr. Metzinger, in contrast, alleges that the government underre-

ported her comparators’ salaries and prevented her from sitting on the pay panels of her subordi-

nates, and that the VA retaliated against her when she made complaints, all to hide the pay dispar-

ity. ECF No. 99 at 20 [¶34], 26-30 [¶¶48-52].

Any additional evidence included in Dr. Metzinger’s briefs, including reports on pay dis-

crimination in the medical field generally (ECF No. 108 at 33-34, 41-46), is not necessary for her

to succeed. And because she plausibly alleges that the government willfully violated the Equal Pay

Act before the two-year limitations window, the court need not decide whether evidence of willful

conduct that occurred within the two-year period is sufficient to entitle a plaintiff to the benefit of

the third year.

Because Dr. Metzinger has satisfied the pleading requirements, the court will not dismiss

Dr. Metzinger’s claims between two and three years before she filed the district court action.

3. Damages

The parties also dispute whether the timely filing of a suit entitles Dr. Metzinger to dam-

ages dating back to her initial employment or limits her recovery to back pay and damages arising

from paychecks issued within the two- or three-year period under the statute of limitations. The

government argues that Dr. Metzinger is barred from recovering for alleged violations that oc-

curred outside the limitations period. ECF No. 106 at 7-9; ECF No. 110 at 1-8, 12.

22

Dr. Metzinger disagrees and argues that section 255(a) is only a limitation on filing—not

a limitation on damages—and that it does not limit how far back she can collect back pay and

damages. ECF No. 108 at 5-6, 34-40. She argues that the VA’s history of issuing unequal

paychecks constitutes a “continuing violation” analogous to a hostile workplace claim, composed

of “multiple, related discriminatory acts.” Id. at 35, see also id. at 34-40. Under her continuing-

violation theory, Dr. Metzinger argues that as long as one discriminatory paycheck is issued within

the limitations period, “all of them are actionable” going back to her first unequal paycheck. Id. at

35, 40.

As noted above, the damages provision of the Equal Pay Act does not impose a time limit

on damages. 29 U.S.C. § 216(b). But many circuits, and this court, have read section 255(a) as a

limitation on both filing and damages. See, e.g., Pollis, 132 F.3d at 118-19; Ashley v. Boyle’s Fa-

mous Corned Beef Co., 66 F.3d 164, 168 (8th Cir. 1995) (“Relief back to the beginning of the

limitations period strikes a reasonable balance between permitting redress of an ongoing wrong

and imposing liability for conduct long past.”); Gandy, 24 F.3d at 863; Nealon, 958 F.2d at 591

n.5; EEOC v. McCarthy, 768 F.2d 1, 3 n.4 (1st Cir. 1985); Weber, 71 Fed. Cl. at 724 & n.12; see

also Vereen v. Woodland Hills School District, No. 06-cv-462, 2008 WL 794451, at *23 (W.D.

Pa. Mar. 24, 2008) (explaining that the “timeliness of an Equal Pay Act claim must be measured

from the date of the plaintiff’s last paycheck” and a “plaintiff’s recovery under the Equal Pay Act

is limited to damages resulting from unequal pay within the applicable limitations period”); cf.

Miller, 977 F.2d at 843-44 (addressing only timeliness of filing and not damages). An EEOC reg-

ulation discussing the availability of lawsuits likewise states that “[r]ecovery of back wages is

limited to two years prior to the date of filing suit, or to three years if the violation is deemed

willful; liquidated damages in an equal amount may also be awarded.” 29 C.F.R. § 1614.408. And,

23

as discussed above, the continuing violation theory does not permit an employee to recover for

Equal Pay Act violations outside the limitations period. Thus, although damages would only be

calculated at a later stage of litigation, precedent establishes that section 255(a) is both a limitation

on filing and a limitation on damages. 5

* * *

In sum, this court lacks jurisdiction over Dr. Metzinger’s Equal Pay Act claims arising

from paychecks issued before May 21, 2016. If Dr. Metzinger can prove willfulness, the court has

jurisdiction over claims arising from paychecks on that day and after.

B. Dr. Metzinger has established a prima facie case of pay discrimination

The government argues that Dr. Metzinger’s timely wage-discrimination claims must

nonetheless be dismissed for failure to state a claim because her transfer complaint does not allege

that she was paid less than comparators during the time period over which this court has jurisdic-

tion. ECF No. 106 at 10-11. The government argues that all evidence of the comparators’ pay

comes from outside the limitations period and that two comparators were paid less than Dr. Metz-

inger. Id.

Although Dr. Metzinger does not directly respond to those arguments, her transfer com-

plaint establishes a prima facie case of discrimination under the Equal Pay Act. Dr. Metzinger may

use evidence from outside the jurisdictional period to establish a prima facie case. “Statutes of

limitations do not operate as an evidentiary bar …. In the context of the Equal Pay Act, the statute

of limitations does not dictate which co-workers the plaintiff may submit as comparators.”

5

While the courts have uniformly read section 255(a) as both a statute of limitations and a limita-

tion on damages, that interpretation does not necessarily follow from the statute’s plain language,

which provides that a cause of action “may be commenced within two [or three] years after the

cause of action accrued.” 29 U.S.C. § 255(a). Meanwhile, the damages provision, section 216,

does not include a time limit on damages. See generally Warner Chappell Music, Inc. v. Nealy,

601 U.S. 366, 372 (2024) (distinguishing statutes of limitations from limitations on damages).

24

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994); see generally Lilly

Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, Jan. 29, 2009, 123 Stat. 5 § 2(3) (“With regard

to any charge of discrimination under any law, nothing in this Act is intended to preclude or limit

an aggrieved person’s right to introduce evidence of an unlawful employment practice that has

occurred outside the time for filing a charge of discrimination.”).

In Corning Glass Works, the Supreme Court relied on evidence of wage discrimination that

occurred before the limitations window to determine that the plaintiffs had met their initial burden

of showing differential pay. 417 U.S. at 192 n.6, 195, 205; see also Gunther, 452 U.S. at 201

(Rehnquist, J., dissenting) (“Under the Equal Pay Act, it is not necessary that every Equal Pay Act

violation be established through proof that members of the opposite sex are currently performing

equal work for greater pay.”); 29 C.F.R. § 1620.13(b)(5) (“[I]t is no defense that the unequal pay-

ments began prior to the statutory period.”).

Since then, at least one other circuit court has “consider[ed] relevant evidence from before

[the Equal Pay Act’s limitations period] while assessing the worker’s claims.” Price v. Northern

States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011); see also, e.g., Dindinger v. Allsteel, Inc.,

853 F.3d 414, 425 (8th Cir. 2017) (accepting testimony as relevant to establishing an Equal Pay

Act violation even though the testifying employee left her job before the limitations period began);

Bartelt v. Berlitz School of Languages of America, Inc., 698 F.2d 1003, 1004-05 n.1 (9th Cir.

1983), cert. denied, 464 U.S. 915 (1983) (noting that “under the Equal Pay Act plaintiffs need not

rely solely on a discriminatory wage differential between current employees to establish a viola-

tion, but may make comparisons to prior employees” even if their employment ended before the

limitations period). Dr. Metzinger therefore may use pay information from comparators even if

that pay information is from outside the limitations period.

25

Dr. Metzinger’s complaint compares her pay to that of four male comparators. See ECF

No. 99 at 20-24 [¶¶35-44]. In addition to raising the statute of limitations, the government also

argues that the salaries of two of the comparators, Dr. Vincent and Dr. Carriere, cannot support a

discrimination claim because they were paid less than Dr. Metzinger. ECF No. 106 at 10-11. But,

under the Equal Pay Act, comparators can include employees with similar pay who hold fewer

duties or responsibilities. Brinkley-Obu, 36 F.3d at 342 & n.12; Hein v. Oregon College of Educa-

tion, 718 F.2d 910, 917 (9th Cir. 1983); see 29 C.F.R. § 1620.14(b). Dr. Vincent and Dr. Carriere,

like Dr. Metzinger, are physicians, but Dr. Metzinger alleges that she had significantly more ad-

ministrative responsibilities and duties than either of them. Those types of comparators are relevant

especially in a case like Dr. Metzinger’s, where she is the only chief with additional duties. See

Brinkley-Obu, 36 F.3d at 342 n.12. There is no other comparator with the same duties. Dr. Metz-

inger alleges that she was paid only marginally more than those male doctors, between $1,000 and

$3,000 annually. ECF No. 99 at 23 [¶¶41-42]. That is sufficient to state a claim under rule 12(b)(6).

In a footnote, the government also argues that Dr. Metzinger’s wage-discrimination claim

should be dismissed for failure to state a claim because she alleges that her salary was eventually

corrected in January 2018, when she became the highest paid employee in the section. ECF No.

106 at 9 n.5. But that correction does not address the alleged underpayments she received between

May 2016 and January 2018. And even the government concedes that Dr. Metzinger’s claims after

May 2017 are timely. ECF No. 110 at 13.

Thus, the government has not established that Dr. Metzinger’s complaint should be dis-

missed for failure to state a claim.

C. This court does not have jurisdiction over Dr. Metzinger’s retaliation claim

The government argues that Dr. Metzinger’s retaliation claim must be dismissed because

retaliation is a tort, and this court lacks jurisdiction over tort claims. ECF No. 106 at 11-12 (citing

26

Jentoft, 450 F.3d at 1349). Dr. Metzinger argues that this court must be able to adjudicate her

retaliation claim because “the parties were given no choice but to litigate in the Court of Federal

Claims.” ECF No. 108 at 46. She argues that “[i]t would hardly make sense to require the federal

government to abide by the Equal Pay Act, and require victims to bring their lawsuit only in this

court,” and then prevent the court from adjudicating retaliation claims that arise from the same

Equal Pay Act violation. Id. at 48.

The government is correct that this court lacks jurisdiction over Dr. Metzinger’s retaliation

claim under the Fair Labor Standards Act. In Jentoft, the Federal Circuit held that a claim based

on an employer’s retaliation in response to complaints of sex-based wage discrimination, like Dr.

Metzinger’s, is a tort claim. 450 F.3d at 1349-50. Tort claims are beyond this court’s jurisdiction.

Id.; 28 U.S.C. § 1491(a)(1) (expressly excluding cases “sounding in tort” from this court’s juris-

diction). And Dr. Metzinger does not allege that her retaliation claim falls within an established

exception to that rule. E.g., Awad v. United States, 301 F.3d 1367, 1372 (Fed. Cir. 2002) (explain-

ing that this court can hear tort claims when they stem from a breach of contract claim).

But if this court lacks jurisdiction, and “it is in the interest of justice,” the court should

transfer a civil action to the court “in which the action or appeal could have been brought at the

time it was filed or noticed.” 28 U.S.C. § 1631. In a similar case, this court transferred a wage-

discrimination retaliation claim to the appropriate federal district court after determining that it

lacked jurisdiction. Kennelly v. United States, No. 23-425, 2023 WL 3667432, at *1 (Fed. Cl. May

25, 2023) (determining that transferring a retaliation claim to district court “would best serve the

interests of justice because it would avoid jurisdictional disputes” (marks omitted)). Here, Dr.

Metzinger’s case originated in the Eastern District of Louisiana, and her Title VII case there is still

pending, stayed. Metzinger v. Department of Veterans Affairs, No. 20-cv-599, ECF No. 10 (E.D.

27

La. Nov. 10, 2020). She could have brought a retaliation claim in that court, at the time she brought

suit there under the Equal Pay Act. Transferring the claim back to the Eastern District of Louisiana

would best serve the interests of justice.

Dr. Metzinger is correct that keeping the Equal Pay Act claim in this court while transfer-

ring the retaliation claim is not efficient. Where the Equal Pay Act and Tucker Act intersect, Con-

gress has—likely unintentionally—created a disjointed remedial scheme for federal employees

alleging pay discrimination. But this court cannot avoid that outcome.

D. Dr. Metzinger’s motion to direct negotiation does not warrant relief

After the July 2024 oral argument on the government’s motion to dismiss, the court ordered

the parties to engage in settlement discussions every thirty days and report on each of those dis-

cussions. ECF No. 116. Complying with that order, the parties filed two joint status reports. ECF

Nos. 117, 120. Instead of filing a third joint status report, Dr. Metzinger filed a motion asking the

court to direct the government to negotiate in good faith, or in the alternative, to relieve the parties

of their obligation to participate in settlement negotiations. ECF No. 121. She argues that no actual

negotiations have taken place because the government is not willing to address all of Dr. Metz-

inger’s related claims—the Equal Pay Act claim, the Title VII claim, and the retaliation claim—

holistically, as encouraged by the court, and because the government’s attorney—Patrick An-

gulo—does not have settlement authority. ECF No. 121-1 at 4-11.

The government opposes in part, arguing that the government is engaging in good-faith

settlement efforts and remains open to settlement. ECF No. 122. Mr. Angulo states that he is co-

ordinating with the VA, counsel from the Eastern District of Louisiana, and the Defense Finance

and Accounting Service. Id. at 2-3, 7. The government also argues that Dr. Metzinger’s motion

does not comply with this court’s rule 7.3, which requires that, before filing a non-dispositive

28

motion, a party must “make a reasonable and good faith effort to discuss the anticipated motion

with opposing counsel.” Id. at 6.

Dr. Metzinger’s motion does not warrant relief. The Department of Justice has broad au-

thority to settle all of Dr. Metzinger’s claims, and Mr. Angulo has authority to participate in nego-

tiation discussions. ECF No. 122 at 9. Mr. Angulo did not refuse to address Dr. Metzinger’s Title

VII and retaliation claims; he proposed addressing the Equal Pay Act claims first. ECF No. 121-1

at 5. Furthermore, although Dr. Metzinger asserts that she satisfied the requirements of rule 7.3

because she communicated her objections to the government before filing her motion (ECF No.

123), she did not inform the government that she planned to file a motion (id.; ECF No. 123-1).

Thus, she failed to comply with rule 7.3. See Lohmann v. United States, 171 Fed. Cl. 177, 182 n.5

(2024).

The parties shall continue to negotiate and work together to try to settle all of Dr. Metz-

inger’s claims holistically and in light of this opinion. The parties shall meet at least once every

thirty days and shall file a joint status report after each of those discussions updating the court on

the status of the settlement process. The next joint status report is due November 12, 2024. The

court also plans to hold a status conference and will schedule that shortly.

III. Conclusion

For the reasons stated above, this court grants in part and denies in part the government’s

motion to dismiss Dr. Metzinger’s transfer complaint (ECF No. 106). The Clerk of the Court is

directed to transfer Dr. Metzinger’s retaliation claim to the United States District Court for the

Eastern District of Louisiana as a related case to case nos. 19-cv-10614 and 20-cv-599. The court

also denies Dr. Metzinger’s motion to direct the government to negotiate in good faith, or in the

29

alternative, to relieve the parties of their obligation to participate in settlement negotiations (ECF

No. 121).

IT IS SO ORDERED.

s/ Molly R. Silfen

MOLLY R. SILFEN

Judge

30