-DEM Cross v. Suffolk City School Board et al, No. 2:2011cv00088 - Document 24 (E.D. Va. 2011)

Court Description: MEMORANDUM OPINION that the plaintiff's Motion for Leave is DENIED. The First Motion to Dismiss is GRANTED as to defendants Suffolk Public Schools and Liverman, DENIED as to the claim for liquidated damages in Count I, and GRANTED as to Count II . Accordingly, this action is DISMISSED as to Suffolk Public Schools and Liverman, and Count II of the Complaint is DISMISSED as to the Suffolk School Board. The Second Motion to Dismiss is DENIED, as to the failure to state a claim defense, and GRAN TED, as to the exhaustion of administrative remedies defense on the disparate impact claim. This action will go forward between the plaintiff and defendant Suffolk School Board on Count I on a claim of disparate treatment,13 with a claim of liquidated damages.. Signed by District Judge Rebecca Beach Smith and filed on 7/14/2011. (rsim)

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UNITED STATES DISTRICT EASTERN DISTRICT FILED COURT OF VIRGINIA JUL 1 4 2011 Norfolk Division EMILY M. CLERK. U.S DISTRICT COURT NC">ro: k va CROSS, Plaintiff, CIVIL ACTION NO. 2:llcv88 v. SUFFOLK CITY SUFFOLK SCHOOL PUBLIC BOARD, SCHOOLS, and MILTON R. in his LIVERMAN, capacity as Suffolk Public Superintendent of Schools, Defendants. MEMORANDUM OPINION AND This motions: matter (1) the Appeal the remand ("Motion School Board and Milton Motion Count to I below, Dismiss comes plaintiff's, court's April for Liverman Dismiss"); Motion is GRANTED, Motion to Dismiss for the Emily the to the in part, is DENIED, is on Memorandum Suffolk Motion For and DENIED, following for Leave Order defendants', DENIED; in part, the Motion the reasons the First in part; and GRANTED, and City Schools, Dismiss Motion to denying Suffolk Public to defendants' Dismiss"). Leave Cross, Board"), ("Liverman"), (3) court 2011, (2) School and ("Second Motion the 21, Leave"); ("Suffolk R. before ORDER to ("First Dismiss set forth Motion the in part. to Second I. The plaintiff, teacher been she a Factual for thirty-seven teacher has Emily at been Education. the the Suffolk Public Rather, the that her same her 2004, but "[a]s plaintiff, result [she] loss professional has of skills or of the failure employment and charge of United States and to the age 8, discrimination Equal on December sue. November 16, will the selected. who "do[] that promote not Cross alleges [her] continue benefits, are to in suffer injury opportunity to for % 12. the plaintiff brought a the defendants with Commission ("EEOC"), EEOC March 16, 2010, Circuit Court for the City of the Age violations Id. with Opportunity On parallel to 2004, several plaintiff diminished against the The related 2007, Employment 2009, and on been experience 1-1. reputation, about and has Technical purportedly No. suffered, not she individuals ECF promotion and career advancement." On who and applied has school since principal other and significant 11, she 2001, and, Career assistant with licensed of Schools, plaintiff filled direct earnings, of a August of date, 1 a the to Compl. employment, loss were the possesses." in Schools, than possess chair History been Since Public position vacancies younger years. has department the for Cross, Suffolk Beginning occasions and Procedural the issued plaintiff of her a filed Suffolk, Discrimination notice this Virginia, in of the right action in alleging Employment Act ("ADEA"), 29 U.S.C. § ("VHRA"), Va. Code Ann. alleges they that the the of and to employees." defendants of and federal the notice question 1441{b). remand a On 17 to 1, VHRA ADEA age On removal in "in that for the positions within disparately 40 and and older when and performing younger February this pursuant court. Act plaintiff procedures treated 24. the and principle qualified 2011, state the selection jurisdiction March action of Rights the employees and Human Specifically, which similarly HU Virginia assistant impacted Compl. filed to Schools allegedly the violated utilized Public disproportionately and 2.2-3901. individuals Suffolk compared § defendants implemented promotion 623(a), court to 28 plaintiff On April 11, on the U.S.C. filed 21, 2011, a 2011, the basis §§ 1331 motion this to court denied that motion. On On May June February 19, 1, 2011, the to plaintiff defendants 14, 2011, 2 011, the to Federal 2011, the on March the the June 18, and, pursuant 2011, on pursuant March motion, the and, Dismiss On 2011, 2011, 3, motion, On 20, plaintiff the Rule Rule of in of the reply the Civil Procedure in Second Procedure in opposition for opposition the defendants Civil Motion filed responded filed responded the plaintiff's defendants 2011, defendants Federal responded plaintiff 7, filed First to that that filed. Motion to 12(b)(6). replied. to that On April to 12(b){6). to was opposition Motion Leave. Dismiss On May motion, 2, and, on May 9, 2011, the motions are ripe defendants that otherwise are only the involves there is [(3)] that advance § a judge either include the on U.S.C. § court, in "of the ground for appeal district an its order own or in of outstanding law the this court that of not as to to which and materially 28 initially may a party's statement." order opinion may court states such [(2)] order district required permission or order, litigation." does response interlocutory said difference from "the 12 92, opinion question termination of the in 28 the if controlling the ultimate If in is immediate language order, noted substantial 1292(b). such a an the Motion for Leave appealable district [(1)] of Standard of Review A. orders All for review. II. Unless replied. U.S.C. include amend its to R. Fed. motion, P. App. 5{a) (3) . ME]ven § 1292(b), court until v. and the of departure if the district appellant appeals from the still the exceptional basic policy the entry of Livesay, 43 7 U.S. the district has certifies that after citations judge a 463, omitted); see final of burden the of judgment." (1978) 28 U.S.C. court properly certifies § justify appellate Coopers (internal 1292 (b) the order, under persuading circumstances postponing 475 order & a review Lybrand quotation (noting the marks that if the prospective appellant days § must after the 1292(b) matter, 1989) , party then entry Myles the v. 404 a 2d interlocutory appeal Rule may claim upon which Rule 12 (b) (6) facts Bell to place plausibility As 908 126 Difelice Va. Civil to motion Procedure dismiss a can be to claim Twombly, standard is for granted." dismiss, v. a complaint that 550 not U.S. 544, defendant the court the is 1949 will (2009) when court liable Airways, must plaintiff to draw the for accept plead (citations the that a state a survive a to to must aver "enough the misconduct as true The probability than a "sheer Ashcroft v. Iqbal, omitted). pleads "A claim has factual inference alleged." factual face." (2007) . a more reasonable the provides to is entitled to relief. allows the Accordingly, 570 equivalent she that on is plausible on its that plausibility Cir. U.S. In order possibility" facial such (4th "failure plaintiff 1937, v. 12(b)(6) the Ct. in burden 2005) . but S. of n.2 corresponding requirement, 129 drafters the ten discretion" 125, {E.D. "within Motions to Dismiss relief Corp. a See state a claim to relief Atl. F.2d appeals is granted sparingly. of move of judicial 881 907, B. defendant "dual courts court order") . certification. Supp. Federal the the Laffitte, district F. to of contemplated seeking Inc. , apply content that the id. Although allegations in a complaint, the court that are couched as need not accept A. plaintiff Memorandum include Order the asks the denying requisite appeal. The court declines Specifically, substantial questions the of an explicit law complied fatal to removal court discretion of court an the summons; amendment requests the removal served with not timing to more and the (3) so 1949-50. § (1) than of to the interlocutory the Memorandum § that 1292(b). there as the timing is to "a the absence of the removing requirement is removing party's undisputed (2) thirty days a that its whether whether removing whether an 2011, order so opinion" a pleadings notice that 21, in U.S.C. removal requirement; allow 28 1446(b)'s the April court for of of of its because find therein: U.S.C. initial to do notwithstanding with notice to in the notice 28 at language Circuit difference resolved compliance has state Fourth does for with to requirements court statement party the the ground amend certification to meet to remand apply not id. conclusions Analysis court can does See legal Motion for Leave plaintiff Order true factual allegations. III. The as in order district removal party after to where the district to amend its said party was include court a the may permit removing state such party said amendment in its response to a motion to remand. Rather substantial cites a than pointing ground case from the court to difference for the of Western Flinn & Dreffein Eng'g Co., in which appeal The that for an plaintiff precise court order denying highlights interpretation the Fourth Circuit." though, the for 28 U.S.C. § of 675 F. controlling or only those Supp. not of the this court's April plaintiff's reasons Order, set and citation forth for 21, initially the in 2011, to the reasons law is was stated 2009), remand.1 that "the In that case, the one to all diversity removable." id. at 647. than the questions addressed case court's to "whether applies v. unresolved by Memorandum Order. that Va. statement 144 6(b) 1446(b) That question is entirely different in its King interlocutory motion 2d at 646-4 7. question in § {W.D. of a plaintiff Virginia, plaintiff's case the of certificate that year limitation on removal actions, the demonstrate 2d 642 Supp. a that opinion, District 675 F. granted cases is April above, Accordingly, inapposite. 21, the 2011, court For the Memorandum FINDS there 1 The plaintiff also directs the court back to cases cited in its briefs in support of its Motion to Remand. In brief review, the plaintiff cited Cook v. Robinson, 612 F. Supp. 187 (E.D. Va. 1985), on the first question, four cases from three district courts outside the Fourth Circuit on the second question, and Williams v. Wilkerson, 90 F.R.D. 168 (E.D. Va. 1981), on the third question. As recognized in the court's April 21, 2011, Memorandum Order, Cook was wrongly decided and Williams does not support the plaintiff's position on the third question. Moreover, four cases from three district courts outside the Fourth Circuit do not persuade this court that there is a substantial ground for difference of opinion requiring Fourth Circuit guidance on the second question. is not a substantial ground for difference of opinion on any of the questions of law addressed in the court's April 21, 2011, Memorandum Order such that an interlocutory appeal is warranted. Accordingly, the court DENIES the Motion for Leave. B. In court the to against First dismiss First Motion to Dismiss Motion (l) Count Suffolk Public liquidated damages to I Dismiss, of the the defendants Complaint Schools and Liverman, in (2) its and (3) Count defendants. In Count seeks I, its entirety to all three as to all three Parties Liable Under the ADEA the plaintiff alleges violation of the ADEA and compensatory liquidated in entirety The court addresses each in order. 1. II the the claim for in Count I of the Complaint as defendants, ask damages of as well damages, up to as $100,000 an plus order $100,000 compelling in the defendants to promote her to the position of assistant principal or to give her front pay and benefits until her planned retirement. must be because dismissed they are as not to for the period remaining The defendants argue that Count I Suffolk employers Public under the Schools ADEA, and and subject to liability for any purported ADEA violation.2 Liverman thus The ADEA The Complaint does not describe the role of Liverman hiring decisions at issue. Virginia law provides that supervision of schools in each school division shall be in a school board." Va. Code Ann. § 22.1-28. There is 8 not in the "[t]he vested also a provides that " [i] t refuse to fail or any individual shall hire or individual's age." privileges 29 as who has twenty or more twenty or more Only persons ADEA person year" are and who Lighting Corp., The Virginia schools, body § teachers as ADEA 510 is Code authorizes teachers 22.1-71 . the the such a affecting current See (4th Cir. not the and an to sue . . and i^ public may § sue, be schools of a in each of preceding § 630 (b). meaning Birkbeck of v. the Marvel 1994) . under Board, and sued, 22.1-295(A) commerce Id. the employer School is or person." within such "employer" be not the ADEA. public See Va. "is declared a contract, (providing school the sued. (providing that a school board with"); in in terms, of for each working day to against compensation, industry violations. Schools discriminate An an of ... because employers F.3d 507, Public corporate contracted 30 in weeks employ to Code Ann. qualify his employer 623(a)(1). § agent an employment, employees "any for to U.S.C engaged for otherwise of calendar liable Suffolk or respect defined calendar "a unlawful ... with conditions, be [and] that division be "[t]he shall be division superintendent in each school division, id. § 22.1-58, who is appointed by the school board. Id. § 22.1-60(A). Virginia law further provides that "[t]he teachers in the public schools of a school division shall be employed and placed in appropriate schools by the school board upon recommendation of the division superintendent." Id. § 22.1-295(A). Thus, the decisions not to hire the plaintiff as an assistant principal may have involved Liverman to the extent that he makes and promotion recommendations to the Suffolk School Board. hiring employed placed in recommendation upon and of added) ) ; Coll., see 848 college's proper F.2d board trustees the was trustees, sued). As Schools, Public As v. 460 in a Bd. (4th Title of is Suffolk the According, Trs. than as to the employer (emphasis (explaining where Maryland employer, college, subject was a the statutes the board of the board of and to sue and the Suffolk and not to Cmty. that college, Board, board Montgomery authorized School school the an was the of 1988) action trustees college, the of Cir. VII by superintendent" rather identical the schools division trustees, legally such, this case. 457, board unlike the Alvarado of defendant designated Public also appropriate ADEA liability be in the court DISMISSES Count I as to Suffolk Schools. to nor other for Liverman, employees ADEA Accordingly, the are law liable violations. the is See in that their Birkbeck, supervisors individual 30 510.3 individual specifies that is Liverman irrelevant, is sued though, in Superintendent of the Suffolk Public Schools. 3 that at cannot maintain an ADEA claim against Liverman in his point correct F.3d capacities plaintiff This are neither the capacity. defendants clear as his See, the Complaint capacity e.g., as Compl. The inclusion of the term "agent" in the ADEA's definition of employer is "an unremarkable expression of respondeat superior that discriminatory personnel actions taken by an employer's agent may create liability for the employer." Birkbeck, 30 F.3d at 510 (citations omitted). 10 H 4 (stating that capacity"). ADEA is claim against seek Court to impose capacity suits action and as is, is, the and for 473 all official the only of 159, "As respects entity." case, intents an the 7, (conceding No. subject to actions"). Liverman, See 7 damages to recognizing supra notes 2 and her court that 3. 11 his an agent." quotation an name, School to entity official- to be Board respond. claim treated will against be the DISMISSES actions Count Suffolk to Dismiss one employer's received Thus, to First Mot. "there for the a in Opp. that Cross Accordingly, while Suffolk and purposes, See PL's Mem. than suits pleading government respond, The official (internal the it 166. opportunity School Board.4 ECF to at capacity is her Board. 2004). individual, (1985) other because School officer long as Id. capacity another way of an 165 official maintain (4th Cir. an which his not individual on opportunity in all afforded while in Suffolk 783 represent an the 766, that omitted). instant was his F.3d U.S. may against entity and a suit against notice I Graham, suit In an solely liability "generally notice capacity 355 named plaintiff in claim personal citations receives the explained against Kentucky v. marks her Martin, has "is Liverman of Love-Lane v. Supreme an Nevertheless, duplicative See Liverman 'employer' discriminatory Count in his I as to official capacity as Superintendent of Suffolk Public Schools may be imputable to the Suffolk School Board under the ADEA.5 2. The Liquidated Damages Under the ADEA defendants liquidated damages next on Count Defs.' I because thus exempt First in Supp. punitive point expressly ex rel. Fact are Chandler, Concerts, in 4 69 Ill, ADEA by Inc., U.S. 453 nature." U.S. Trans (1985). The School from punitive general Cook 129 260 ADEA's] defendants' recover Board today 4. is v. n.21 Airlines, then argue punitive and damages Inc. States Newport (1981)), v. to be Thurston, damages of v. that that nothing interpretation no unless United (quoting a The that municipalities] County "is damages." ECF No. liquidated Defendants authorizes 6, rule (2003) 247, World cannot Suffolk [against 119, [the expressly municipalities. "'[t]he plaintiff to Dismiss statute,'" for 125 Mot. allowed 538 intended punitive U.S. that authorized "Congress the out damages the of entity defendants that and government Mem. argue in against the ADEA is incorrect. The a ADEA provides State and any that agency political subdivision of 29 § U.S.C. against See ADEA 630(b), and employers supra note "a or State or political instrumentality a State" is "willful 3. 12 a an employer under explicitly authorizes for of subdivision of State or the ADEA, liquidated damages violations." Id. § 626(b). The defendants semantic not an to ask basis authorization of the authorization. intent with the illusory 469 U.S. claim for in at it The court liquidated damages Dismiss defendant's is that defendants. The 6 the Although other circuits damages City Transit Auth., v. Hazleton 2004); 1246, No. v. Ray 1253 51-4, City of Area v. 981 417 F.2d must Circuit that Motion Dist., has in by its the ADEA very See for to be Dismiss to the Lee 319-20 (8th Dep't, 1983) . 13 697 as to ADEA Motion all II ruled on e.g., (2d Cir. F.3d 366, Rapid Cir. F.2d Sch. City 1992) 743, this 2005); 372-73 the be issue, v. N.Y. Potence (3d Dist., Area to liquidated Cross (en of should authorizes See, Separate v. First Count not 254-57 357 1995) ; the that the F.3d 241, Fire the intended the dismissed employers. Mun. 316, Wauwatosa on argument. Congress in argue Special Cir. subject I. be Sch. the Congressional belied in is VHRA Claims found Iuka (5th in Count be a intent damages their First II government of the defendants have against is authorizes argument Fourth ADEA "punitive" that final Count the frustrate that {noting DENIES 3. The not damages Congressional word support 125 damages liquidated punitive).6 will with other words, liquidated distinction cite In violates the truth "liquidated" clear of use court defendants World, form did of ignore the dispositive damages. willfully in The an to that Congress this "punitive" court damages that the an municipality punitive Trans circumvent authorization a case to argument: defendants that seek 51 Cir. F.3d Sch. Dist. bane); Orzel 758-59 (7th Cir. dismissed neither Board one and is Ann. § City Code five plaintiff's it employs grounds creates right of of section but employee Section a against persons v. the forth than the Suffolk Franklin, 142 reasons employers.7 See the Supp. and 2d For court an of agrees that 496, [] a as Blankenship (E.D. VHRA). from Va. creates 500-01 the Va. Virginia with more than discharging an years old or older. administrative the 40 only see employer is action. provisions C); under employee prerequisites cannot Schools are 2d stated, In any event, Part School VHRA its employees forth Suffolk employees. the the B Supp. prohibits Public already supra that action the to cause enforce plaintiff employers F. of as because three defendants. private F. Liverman action. case, are if sets this who 372 and below, all to fifteen based on age, 2.2-2639(C) to and fifteen subsections cause for bringing a civil In in 2.2-2639(B) less than (providing Portsmouth, (describing employer limited action provided Schools more set a 2.2-2639 (A) specifically 2005) Public the other VHRA "private v. Suffolk II must be dismissed as The Code to because these, Count as liable 749, and under 751 those maintain Liverman the (W.D. two her VHRA, Va. VHRA claim because see 2000), defendants only Collins and, for are not the plaintiff cannot maintain her VHRA III.B.I. 14 claim against involve the 2639 (B) & at *2 (C) ; there Va. 2005) plaintiff cannot School See A No. to 4-1 or Defs.' it fails as in Supp. "EEOC more of the a in F.3d document First integral [if] see to also 497, Wells 512 a matter of (4th to do quotations v. (E.D. BAE Va. Sys. not Norfolk law and is DISMISSED. Va. where the against the employees. on v. 2004) has Trigon (" [W] hen dismiss, the on a and a court complaint in challenge Ship ECF the employer relied marks 2007). 15 only to Dismiss, dismiss explicitly Auto. (E.D. Ass'n to 2.2- Moreover, her Cir. motion plaintiffs (internal that its and the form § not 3672119, (indicating whether determining *9 fifteen Mot. Charge"] to at VHRA than 234 367 Int'l omitted)). under has WL applies 212, and 2d it Ann. Am. Chiropractic authenticity." Supp. [VHRA] Am. it was omitted) ) ; "the does 2009 3132451, Discrimination Inc., consider WL case Code v. of attaches complaint F. Mem. 2005 remedy because Va. l:09cvl5, (citations a this employees); more defendant [if] pursue See Huizenga that discharge" Board No. 2009); l:05cv264, Charge Healthcare, may 3, because employee. Birach, [hereinafter plaintiff's 500 v. an {explaining been a Suffolk defendants of Nov. No. has Ex. the Wynne Ass'n, 22, of discharge (E.D. Dealers Nov. any the its citations Repair, Accordingly, Count 483 II C. Two months Dismiss they defenses Rule to exhaust her the remedies a 551 to F.3d the a 297, the defense e.g., of 1983); (4th Cir. remedies courts Cir. 1995))). R. concerns Civ. P. 2009) v. its of N.C. The to regard 16 The to this "Cross based v. Jones on a state a matter of matter the disparate frame Corp., Qrp, [an "a failure ADEA] claim jurisdiction 48 always 707 Ltd., F.3d over 134, consider jurisdiction. court but prerequisite that Corr., must failed administrative Calvert concerning has claim, Whirlpool v. claim," defendants (remarking court ("If (2) to jurisdictional Dep't subject 12(h)(3) failed to exhaust subject to plaintiff 9. Vance see pursuant in failure "a new impact and failure action." Cir. federal a two disparate relief satisfy Davis that Fed. that to 300-01 for a 12(b)(6), as 12, of to of with at Motion raising purportedly claim Id. First Procedure Dismiss, No. ADEA." (citing (4th to dismissed ECF terms failure (4th be the Civil Complaint, claim in brought of remedies administrative claim" 138-40 the 6, the cause 488 exhaust deprives Motion must law counsels is Rule "Plaintiff's Dismiss defense 483, of ADEA under private F.2d I plausible claim applicable to to a first Federal (1) the defendants administrative Second Mot. impact the Second Count of state to the 12(b)(6): violation to after pursuant brought Second Motion to Dismiss determines a See, at any time tnat it lacks subject-matter jurisdiction, dismiss the action." (emphasis added)). The second defense is a claim, but is state provided in Rule under this it 12 (h) (2) rule the court must must not correctly framed incorrectly or (3), make as a failure "Except raised. to as a party that makes a motion another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Fed. R. Civ. P. I2{g)(2). There is no indication in the Second Motion to Dismiss that the second defense was unavailable to the defendants they filed the First Motion to Dismiss, set forth in Federal apply.8 Although defendants raise include in the opinion that the a First it Rule App'x 185, plaintiff Motion cannot 192 Civil to Procedure does 12(g). (4th Cir. 12 (h) (2) not object defense Dismiss, entertain a time the court successive («[s]ince and the did not of the is 12(b)(6) the (3) that they See Patterson v. 2010) the nor that the exceptions non-jurisdictional without overriding Rule F. of at motion Whitlock. Federal 392 Rules Rule 12 (h) (2) provides that a party may raise the defense of failure to state a claim upon which relief can be granted "in any pleading allowed or ordered under Rule 7(a); [] by motion under Rule 12 (c) ; or [] at trial." Here, the defendant raised that defense in a motion under Rule 12(b), thus, Rule 12(h)(2) is inapplicable. Rule 12 (h) (3) states, «[i] f the court determines at any time jurisdiction, the court must defense is inapplicable. that it lacks subject-matter dismiss the action." The second non-jurisdictional, 17 thus Rule 12 (h) (3) is also were first adopted in interposing successive ¢ tne ¢ ¢ if defendant."); C-08-2754, see also WL the they have barred a defendant motions defense 2010 Accordingly, 1938, raising was previously Legal 335789, Additions at court DENIES certain *2 the defenses available LLC (N.D. 12(b) to the Kowalski, v. Cal from No. Jan. second defense 22, 2010). in the Second Motion to Dismiss as procedurally barred.9 The court turns back to the defense that Cross failed to exhaust her administrative remedies with regard to her claim of disparate include impact such a in Count claim or I, because any her facts supporting bringing a civil action under the ADEA, charge of discrimination § 626(d)(l); Jones, clear dates, 29 and concise should be the 551 F.3d at 300. statement constituting the C.F.R. with of the (citations charge did not one. Before a plaintiff must file a EEOC. See 29 U.S.C. The charge must contain «a facts, alleged unlawful § 1601.12(a)(3) EEOC including pertinent employment practices." omitted). Such statement "sufficiently precise to identify the parties, and to describe generally the action or practices complained of." The court does defense, see Fed. R. id. not find that the defendants waived that Civ. P. 12 (h) (1) ; In re Morrison, 421 B R 381, 387-89 (Bankr. S.D. Tex. 2009), and thus they could raise it "in any pleading allowed or ordered under Rule 7 (a) ; [] by motion under Rule 12{c); or [] at trial." Fed. R. civ. p. 12 (h) (2). However, as the court dismisses the disparate impact claim in Count I for failure to exhaust administrative remedies, see infra 18-22, any such defense would be moot. 18 § 1601.12(b). "[A] claim employment discrimination connection between MeIntyre-Handy 611, 624 v. {E.D. developed by may be F.3d 80 300 in (quoting F.3d 954, 963 to there Inc., subsequent a sufficient EEOC 422 omitted). the . employee's is Servs., . Techs. F. . Supp. charge, complaint, the charge." "'Only initial original v. an employee's investigation of Evans in the in the a of if (citations (4th Cir. The particulars and stated reasonable maintained at 2006) maintained only Customer claims related be suit claim APAC Va. discrimination reasonably the may lawsuit.'" Applications those complaint Jones, & Serv. On as position of August 31, plaintiff's EEOC Charge multiple July 31, Assistant 2007, I are, 2001 Coordinator Technical II. not and and occasions from 2006 2007, I have applied Principal. became aware Most that I and for as the recently was denied on an my current Department position Chairperson is of Teacher Career and Education. No been one has given interviewed or me any selected reasons for the why I have Assistant Principal positions. III. because the I of believe my age, Co., in full, interview thus not selected for the position. On each occasion the position was given to younger individuals who had less experience or were lesser qualified than me. I have been employed with this organization since August 551 1996)). follows: I. recently those those and original 2d I 58, am being discriminated in violation of [VHRA] . 19 the against [ADEA] and as The state defendants that policies argue the plaintiff's or procedures that impact, the but The alleges selected for allegation v. (noting that a making claim. 10 it is too has disparate argument Dismiss the vague impact and this n.2, the utilized disparately older," Compl. her briefing Mem. in Opp. not infra a an role basis to not a a U 17 to exhaust claim is Second Mot. her a disparate the that is later argument, presented stating . to Dismiss administrative . . Second . . 4 this claim. n.2. remedies Mot. contain the to an treated age 40 and indicated in See PL's In any event, on on implemented which employees that based defendant's does plaintiff has pursuing 20 . impacted the to Defendants procedures 20-22. Opp. Complaint impact administrative address "[t]he not (citations in in when outcome" not the 2009) appropriate will Mem. that Merritt Va. discrimination (emphasis added), she (E.D. age While that see for PL's being decision- the this not employer's support contest claim 15. is foundation support her EEOC Although 445 on disparate disparate claim, claim influence disproportionally that in 440, the of they plaintiff's role in not thus, of position. treatment selection and Supp. therefore No. the 2d point." ECF a and, claim F. does alleged ADEA claim on and to a does discriminatory claim treatment factual not on 4 played insufficient The plaintiff "Cross did is any a Here, principal played had make disparate 615 and " [I]f charge a charge the ADEA, asserts age EEOC utilized not agrees. her to age process omitted)), merely disparate employee's does assistant Inc., the in violation of court relates that employer Charge that an WellPoint, "the EEOC rather treatment.10 charge highlight claim. she See in subsequent barred." 2005) Chacko v. essential presence of a implemented others." Co. that Patuxent WL treats of Padron will 429 [] be F.3d 505, (4th Cir. of people *6 (N.D. 111. May 9, 540 U.S. 44, 52 (2003)); Co., court of impact claim, is neutral group of 406 Inc., EEOC F.3d charge policy which the -- that p. 2011) the opinion that plaintiff's facially protected groups at 1949. The plaintiff's the that worse Supp. see 248, as than 2d. --, Anderson 265 (4th v. Cir. to bring a disparate must, has plaintiff EEOC is (citing Raytheon a charge of a specific hiring and/or promotion policy, at a minimum, disparate is facts supporting a reasonable inference of one.11 Ct. claim practice' at This a employment Stores, 2005) . S. procedurally 509 impact Wal-Mart River a disparate v. Hernandez, identify a protected Savannah a Inst., * facially-neutral 1760229, v. element Westinghouse on claim (citations omitted). "An 2011 litigation, a member Cf. does and/or Iqbal, not nor does impact 129 complain it allege any facts that reasonably suggest a policy disparately impacting 11 Although the Fourth Circuit has not ruled on this other courts share this view. See, F.3d 783, 790-92 (5th Cir. 2006); *6-7; Supp. issue, e.g., Pacheco v. Mineta, 448 Padron, 2011 WL 1760229, at Greater Indianapolis Chapter of NAACP. v. 2d 925, 938-39 (S.D. Ind. 2010); Young Ballard, 741 F. v. Covington & Burling LLP, 736 F. Supp. 2d 151, 157-58 (D.D.C. 2010); Leo v. Garmin Int' 1, No. 09-cv-2139, 2009 WL 3122502, at *5 (D. Kan. Sept. 24, 2009); Woodman v. WWOR-TV, Inc., 293 F. Supp. 2d 381, 390 (S.D.N.Y. 2003). But see Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998). 21 persons of her age. Rather, the only claim reasonably related to her EEOC narrative is a disparate treatment claim.12 the plaintiff's disparate of her EEOC administrative court. impact claim is not within the charge, the plaintiff remedies and cannot Accordingly, the court Because has bring GRANTS not such the exhausted a first scope claim defense in her this in the Motion for Second Motion to Dismiss. IV. For Leave the reasons is DENIED. stated Conclusion above, the plaintiff's The First Motion to Dismiss is GRANTED as to defendants Suffolk Public Schools and Liverman, DENIED as to the claim for liquidated damages in Count I, II. Accordingly, this action is DISMISSED as Schools and Liverman, as as to as to the failure the to Suffolk Public and Count II of the Complaint is DISMISSED to the Suffolk School Board. DENIED, and GRANTED as to Count exhaustion of The Second Motion to Dismiss to state a claim defense, administrative remedies is and GRANTED, defense on the 12 The defendants also overlook or ignore the content of the Complaint, see supra note 10, by asserting that "the only claim that has been articulated by Plaintiff in the Complaint is a claim of disparate impact in violation of the ADEA." Defs.' Reply in Supp. of Second Mot. to Dismiss 2, ECF No. 16; see Compl. t 17; id^ U 19 ("Age was a motivating factor and/or made a difference in the failure to promote the plaintiff."). As an aside, « [a] plaintiff is permitted to present both disparate treatment and disparate impact case." Merritt, 615 F. Supp. as claims for relief in the same 2d at 445 (citing Burwell v. E. Air. Lines, 633 F.2d 361, 369 (4th Cir. 1980)). 22 L disparate impact plaintiff and claim disparate of claim. defendant This action will Suffolk School treatment,13 with go forward between Board a on claim Count of I the on a liquidated damages. The Clerk is DIRECTED Opinion and Order to counsel IT IS SO to send a copy of this Memorandum for the parties. ORDERED. Rebecca Beach Smith United States District Judge REBECCA BEACH UNITED Norfolk, Virginia July \*\ , 2011 13 See supra note 12. 23 SMITH DISTRICT JUDGE STATES

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