United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANTS' PARTIAL
MOTION TO DISMISS (DOC. 10)
Christina Reiss, Chief Judge
matter came before the court on October 12, 2016 for oral
argument on the partial motion to dismiss filed by Defendants
Rutland County State's Attorneys Office (the
"Rutland SAO") and the Department of State's
Attorneys and Sheriffs (the "Department")
(collectively, "Defendants") (Doc. 10). Pursuant to
Fed.R.Civ.P. 12(b)(1) and the Eleventh Amendment to the U.S.
Constitution, Defendants seek dismissal of all state law
claims asserted by Plaintiff Jane O'Neill, including her
civil conspiracy, constructive discharge, quantum meruit, and
unjust enrichment claims as well her claim that Defendants
violated Vermont's Fair Employment Practices Act
("VFEPA"), 21 V.S.A. § 495(a)(7) and
Plaintiff opposes the motion. On November 14, 2016, the
parties filed post-hearing supplemental memoranda, whereupon
the court took the pending motion under advisement.
Paul Faignant, Esq. and Marie Peck Fabian, Esq. represent
Plaintiff. Assistant Attorneys General Kate T. Gallagher and
Bartholomew J. Gengler represent Defendants.
following facts are derived from Plaintiffs Complaint and are
accepted as true for the purpose of this motion. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007)
("[A] judge ruling on a defendant's motion to
dismiss a complaint must accept as true all of the factual
allegations contained in the complaint.") (internal
quotation marks omitted).
2009, the Rutland SAO hired Plaintiff as a deputy state's
attorney. She remained employed in that position through
August of 2014. When Plaintiff was hired, her salary was
established at the "entry level" by the Rutland SAO
and the Department. (Doc. 1 at 3, ¶ 14.) Plaintiff was
allegedly told that her level of compensation was "not
negotiable." Id. Despite Plaintiffs repeated
requests, Rutland County State's Attorney Marc Brierre
refused to discuss her compensation with her during her
position as a deputy state's attorney required her to
routinely work fifty to sixty hours per week, and to be
on-call every night for one week per month from 4:30 p.m.
until 8:30 a.m. She was not compensated for her on-call
hours. Defendants were allegedly aware that Plaintiff was
working in excess of forty hours per week, but did not keep
track of her hours worked and would not authorize her
paycheck to be released unless she signed an affidavit
stating that she did not work in excess of forty hours.
Plaintiff did not receive compensation in addition to her
salary for the excess hours she worked, although a male
deputy state's attorney allegedly received additional
compensation on this basis.
2011, the Rutland SAO hired "John Doe" as a deputy
state's attorney to perform essentially the same work as
Plaintiff. John Doe's salary was set at a rate
approximately 26% higher than Plaintiffs. State's
Attorney Brierre allegedly refused to discuss John Doe's
compensation with Plaintiff, including whether they were both
paid the same amount.
John Doe's hire, Plaintiff alleges that State's
Attorney Brierre "embarked on a course of retaliatory
conduct to demean and marginalize" Plaintiff s job
duties, "including assigning much lesser tasks [to her],
which should have gone to the new[, ] less experienced
person" notwithstanding Plaintiffs "overwhelming
existing caseload." Id. at 5, ¶ 25.
Plaintiff was also not included in important office function
meetings and procedures and State's Attorney Brierre
"lashed out" at her whenever she inquired about her
salary. Id. State's Attorney Brierre directed
Plaintiff s salary inquiries to Bram Kranichfeld, Esq., the
executive director of the Department. Attorney Kranichfeld
was "non-committal" in response to Plaintiffs
inquiries and directed her to speak with State's Attorney
Brierre. Id. at 5, ¶ 28.
2013, the Rutland SAO hired "Jane Doe" as a deputy
state's attorney to perform essentially the same work as
Plaintiff and John Doe. Jane Doe's salary was set at a
rate approximately 25% lower than John Doe's.
of 2014, Plaintiff discovered that John Doe had earned
approximately $14, 000 more than her for each year since his
2011 hire. Plaintiff alleges that Defendants knew that she
was being discriminated against on the basis of sex, and that
she was being paid less than her male coworkers "for
equal work that required equal skill, effort[, ] and
responsibility and [that] was performed under substantially
similar working conditions." Id. at 6, ¶
32. Plaintiff further alleges that "[a]s the salary
disparity continued over the years[, ] it perpetuated a sex
based wage differential" between Plaintiff and John Doe.
Id. at 6, ¶ 33. On at least two occasions,
State's Attorney Brierre "lost his temper over
[Plaintiff s] pressing him as to her pay status, to the point
where [Plaintiff] believed [State's Attorney Brierre]
would fire her if she pressed further." Id. at
6, ¶ 34. Plaintiff resigned at the end of July 2014
because the "working conditions had become so
intolerable, she felt she had no other choice but to
resign." Id. at 7, ¶ 35.
Complaint alleges the following causes of action: Count I
(violation of the EPA and VFEPA); Count II (conspiracy to
violate the EPA and VFEPA); Count III (retaliation); Count IV
(constructive discharge); Count V (quantum meruit); and Count
VI (unjust enrichment). Citing Eleventh Amendment immunity,
Defendants seek dismissal of all claims set forth in
Plaintiffs Complaint, except for her EPA claim set forth in
Conclusions of Law and Analysis.
Standard of Review.
is properly dismissed for lack of subject-matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) if the district court lacks the
statutory or constitutional power to adjudicate it. See
Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir.
2011) (citing Moloney v. Soc. Sec. Admin., 517 F.3d
70, 74 (2d Cir. 2008)). Generally, on a 12(b)(1) motion, the
"plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it
exists." Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). However, in cases where a
governmental entity asserts the Eleventh Amendment as the
basis of dismissal, the burden falls to that entity to prove
its entitlement to immunity from suit. See Woods v.
Rondout Valley Cent. Sch. Dist. Bd of Educ, 466 F.3d
232, 237 (2d Cir. 2006) (joining other circuit courts in
"holding that the governmental entity invoking the
Eleventh Amendment bears the burden of demonstrating that it
qualifies as an arm of the state entitled to share in its
Whether Defendants Are Entitled to Eleventh Amendment
Eleventh Amendment provides: "The Judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." U.S. Const, amend. XL
"Although the text of the amendment speaks only of suits
against a state by persons who are not citizens of that
state, the Supreme Court has interpreted the Eleventh
Amendment to extend to suits by all persons against a state
in federal court." Mancuso v. N.Y. State Thruway
Auth., 86 F.3d 289, 292 (2d Cir. 1996).
has long been settled that the reference to actions
'against one of the United States' encompasses not
only actions in which a State is actually named as the
defendant, but also certain actions against state agents and
state instrumentalities." Regents of the Univ. of
Cal. v. Doe,519 U.S. 425, 429 (1997). As a result,
"when the action is in essence one for the recovery of
money from the state, the state is the real, substantial
party in interest and is entitled to invoke its sovereign