Dr. Archie Earl v. Norfolk State University et al, No. 2:2013cv00148 - Document 21 (E.D. Va. 2014)
Court Description: OPINION AND ORDER Granting 13 Motion to Dismiss for Lack of Jurisdiction For the reasons stated above, Defendants' Motion to Dismiss is GRANTED. Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. Plaintiff is ORDERED to file within fourteen (14) days, if desired, a Second Amended Complaint curing the deficiencies identified in this Opinion and Order. IT IS SO ORDERED. Signed by District Judge Mark S. Davis and filed on 2/13/14. Copies distributed to all parties 2/13/14. (ldab, )
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division DR. ARCHIE EARL, Plaintiff, Civil No.: 2:13cvl48 NORFOLK STATE UNIVERSITY, THE BOARD OF VISITORS OF NORFOLK STATE UNIVERSITY, and THE COMMONWEALTH OF VIRGINIA, Defendants, OPINION AND ORDER This filed by Norfolk matter Norfolk State is before the Court State University, University, and the on the the motion Board of Commonwealth to dismiss Visitors of of Virginia (collectively "Defendants"), pursuant to Federal Rules of Civil Procedure 12(b)(1) and After examining the briefs and the record, determines the Court (6). that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. R. Civ. P. forth below, 78(b); E.D. Va. Loc. R. 7(J). For the Defendants' motion to dismiss is GRANTED. reasons Fed. set I. Dr. male Archie FACTUAL AND PROCEDURAL HISTORY1 Earl Associate ("Plaintiff") Professor in the is a state supported" of Virginia." Id. university SI 2. "66 Department Norfolk State University" ("NSU") . "is a year of S[ 1. inequities In in 2006, faculty located Committee salaries." having discovered errors in of members." Id. faculty," data" SIS! 9-10. During and white faculty, Plaintiff's salary NSU "the Commonwealth "Chair of the ("the Committee") . to SI 9. study The "gross Committee, to the Committee accessible "the by by "woefully ongoing "with respect to and younger faculty, was "Committee Committee's analysis," Plaintiff claims he discovered that, recent hires, at conducted a study of "sample data" "departmental Id. began in data provided NSU's Human Resources Office, consisting Mathematics Plaintiff also serves as the Black, PL's Am. Compl. SI l.2 NSU Faculty Salary Issues Research Committee" Id. old, and female inadequate," even 1 The facts recited here are drawn from the Complaint and are assumed true for the purpose of deciding the motion currently before the Court. They are not to be considered factual findings for any purpose other than consideration of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (observing that "when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint"); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) ("[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint."). 2 Plaintiff originally filed his Complaint on March 21, 2013, ECF No. 1, but filed an Amended Complaint on August 12, 2013, ECF No. 12. Thus, the Court recites the facts alleged in Plaintiff's Amended Complaint. though Plaintiff responsibilities "was of the at least job were as qualified" and "the essentially equivalent." Id. SI 11. When Plaintiff's administration" the Equal Virginia failed, Employment Council the basis of on race, "attempts he at began discussions Opportunities "alleging with Commission Human the proceedings" "grievance with Rights, gender, and age." Id. ("EEOC") and the discrimination Plaintiff filed on a charge of discrimination with the EEOC "on December 8, 2011" and the EEOC "issued a right-to-sue letter to 21, 2012." Id. was . . . triggered a wave of hostile forced December Plaintiff alleges that his "decision to file an EEOC complaint created a Plaintiff on to retaliatory acts and intimidating environment operate." Id. 1 20. that within which Plaintiff's Amended Complaint lists the following "retaliatory acts" by Defendants: ¢ Denial of Plaintiff's "most recent request for sabbatical leave;" ¢ Denial of Plaintiff's report, as Faculty Senate president, the Board of Visitors" ¢ Omission of Visitors . . . "right ("BOV") Plaintiff s from March and December, the 2011; to an oral at meetings of in 2011 and 2012; "reports BOV present to meeting the he Board of handbook" in ¢ Demand for copies of Plaintiff's "emails pertaining to the most 26, ¢ recent presidential search" on October 2010; Disposal of Faculty Senate property in Fall 2011 and blaming Plaintiff for failing to Plaintiff obtain or "proper authorization;" ¢ Refusal to meet with communications" 2012; ¢ on September 6, "respond to 2011 and his July 3, and Attempts "to [Plaintiff's] induce the Provost to terminate contract with [NSU]" from January 2010 through February 2011. Id. SI 20. effect Plaintiff alleges of feelings subjecting of insecurity belittlement." forced "to the Id. that Plaintiff in his Furthermore, operate in Defendants' an to job, "actions had the public public embarrassment, ridicule, [and] Plaintiff contends that he was environment that was hostile and permeated with discriminatory intimidation, and insult that was sufficiently conditions severe as to alter the employment, creating an abusive working environment." On Court, Title March 21, 2013, "individually, VII claims," Plaintiff filed a and as a class action, alleging violations VII of the Civil Rights Act of 1964 by of his Id. Complaint in this with respect to the Defendants ("Title VII"), of Title the Equal Pay Act ("EPA"), ("ADEA"). and Defendants ECF No. on August 12, his Age 1. ECF No. July 22, 2013. In the 2013, 4. [by Id. statistical show analyses" NSU SI 13. of the contends "a based to Dismiss on race ECF No. that pattern revealed that men, in [EPA]." "discriminat[ed] violation Motion Act on or ... 12. "inferential practice of violation of in Plaintiff further alleges that "similar against violation of the Plaintiff NSU], Title VII." discriminating Employment adding a claim of retaliation. analyses" discrimination filed a in Plaintiff filed an Amended Complaint Amended Complaint, statistical Discrimination and ADEA, its both of impermissibly women, ... in Plaintiff also alleges that aged "in "was favor Id. f 14. against NSU (over terms 40) of faculty" salary" and in with respect to its "new policy of post tenure review," which "has a discriminatory Plaintiff's by treatment its discrimination filed a of the alleges the second Motion to and . for for NSU faculty, with faculty." Defendants inequities, critic of older Complaint the salary persistent on Amended "retaliation against impact . . Id. that led been administration for his EEOC." Dismiss having Id. on August Finally, Plaintiff having having SI 15. in a for filed the fight vocal its 2013. and uneven charges SI 20. 27, endured of Defendants ECF No. 13. Defendants' second Motion to Dismiss has been fully briefed and is therefore ripe for review.3 II. A. STANDARD OF REVIEW Subject Matter Jurisdiction - Rule 12(b)(1) A party may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). jurisdiction burden The party asserting "has the proving that subject matter jurisdiction exists." Perkins Co., considering 166 a motion court should issue, and may converting F.3d to "regard 647 dismiss the consider the 642, pleadings to facts are prevail as not a in dispute matter of B. a complaint, or Civil a plaintiff's "failure to granted." Rule and the Id. moving the 12(b)(1), mere evidence the pleadings summary on a the without judgment." party moving When Id. jurisdictional is entitled to motion to party's (internal citation omitted). Failure to State a Claim - Rule 12(b)(6) Federal Rule of of for to 1999). When "the material law," dismiss should be granted. outside one (internal citation omitted) . as Evans v. B.F. Cir. pursuant evidence proceeding (4th of Fed. R. Procedure claim within 12(b)(6) a permits dismissal complaint, state a claim upon which Civ. P. 12(b)(6). A based on the relief can be motion to dismiss 3 Plaintiff's filing of his Amended Complaint mooted Defendants' first Motion to Defendants' 4. Thus, the second Motion to Dismiss, Dismiss, ECF No. ECF No. 13. 6 Court considers only pursuant to Rule 12(b) (6) 8(a)(2), which requires must be read in conjunction with Rule "a short and plain statement of the relief," Fed. R. notice of claim showing that the pleader is entitled to Civ. P. 8(a)(2), what the Bell as to "'give . . . claim is and Atl. Conley so Corp. v. 355 defendant fair the grounds upon which it rests,'" Twombly, Gibson, original). pleading v. the 550 U.S. U.S. 41, 544, 47 555 (2007) (1957)) (quoting (omission in The United States Supreme Court has interpreted the standard set forth in Rule 8(a) as requiring that a complaint include enough facts for the claim to be "plausible on face" its and thereby "raise a right to relief speculative level on the assumption that all is (internal citations omitted). "not more akin than to ^probability sheer a a possibility" Ashcroft v. Iqbal, 550 U.S. 556 complaint without "'must accept as in the complaint' of the 12(b)(6) resolving true all and plaintiff.'" Montgomery Cnty., 662, Id. at 555, The plausibility requirement requirement,' that 684 678 a but it defendant motion tests the factual of the 'draw all 462, disputes, factual is 467 (quoting for liable. a district inferences Volunteer (4th Twombly, sufficiency of a allegations reasonable Kensington F.3d (2009) asks at 556). Because a Rule U.S. the the allegations in the complaint are true (even if doubtful in fact)." 570 above Cir. Fire 2012) court contained in favor Dep't v. (quoting E.I, du Pont 435, 440 de Nemours (4th Cir. & Co. 2011)). v. Kolon Indus., Accordingly, Inc., "'Rule 637 F.3d 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.'" (quoting Neitzke (omission in v. Williams, original). A Twombly, 490 U.S. complaint may motion to dismiss "even if it appears remote and unlikely.'" 232, Id. 319, at 327 therefore 555 (1989)) survive a 'that a recovery is very (quoting Scheuer v. Rhodes, 416 U.S. 236 (1974)). Although the truth of the facts assumed, facts" and "need not inferences, unreasonable Mkts., v. Inc. 2000). J.D. consider documents dismiss 'so long Assocs. Ltd., authentic.'" (quoting v. Pitt 213 F.3d Volunteer 175, Fire Mem'1 180 E. Shore (4th Cir. a district court complaint integral Cnty. arguments." motion, the are or true unwarranted to or the Dep't, Hosp., the motion complaint 684 572 "may F.3d F.3d to and at 467 176, 180 Court has 2009)). employment that a establishing framework they Kensington Philips (4th Cir. attached to as accept as conclusions, In ruling on a 12(b)(6) In alleged in a complaint is district courts are not bound by the "legal conclusions drawn from the held 550 U.S. set discrimination complaint a prima forth need facie ... cases, not case Supreme "contain of in McDonnell 8 the specific discrimination Douglas Corp. facts under v. the Green, 411 U.S. 506, 508 792 (1973)." (2002). ... requirement." not, however, v. Sorema, N.A., 534 U.S. The Court explained that the "prima facie case under McDonnell Douglas pleading Swierkiewicz is an evidentiary standard, Id. at 510. The Fourth not a Circuit "has interpreted Swierkiewicz as removing the burden of a plaintiff to allege facts sufficient to state all the elements of [his] 761, claim." 765 contain mere (4th Cir. "detailed "labels elements at Bass v. E.I. and 2003) . factual Dupont de Nemours & Co., Thus, although a complaint need not allegations," conclusions" 324 F.3d or a a complaint "formulaic of a cause of action will not do." containing recitation Twombly, of the 550 U.S. 555. III. DISCUSSION Defendants argue that Plaintiff's "entire Amended Complaint should be dismissed" because his ADEA claims "are not within the subject matter jurisdiction of this District Court" and because his EPA and Title VII claims "fail for which relief may be granted." Having reviewed the relevant to state Defs.' legal a cause of action Br. at 2, ECF No. standards, the Court 14. will consider each cause of action in turn. A. Plaintiff s Amended ADEA Claim Complaint alleges that Defendants violated the ADEA by treating older faculty "unequally in terms of salaries" and NSU's "Post Tenure Review policy." PL's Am. Compl. SI 19, "ADEA ECF No. claims are Defendants barred Plaintiff failed to against 12. by the "bring his the proper respond Eleventh that Plaintiff's Amendment" because injunctive and declaratory claim state official." Defs.' Br. at 7, ECF No. 14. 1. Sovereign Immunity It is provide well-established for federal 726 721, Garrett, 528 (2004) 531 U.S. U.S. 62, 72-73 Postsecondary Ed. Louisiana, also extends Lee-Thomas v. (4th Cir. 519 U.S. 425, in Id. the Sav. Regents 538 of Regents, Bd. v. 44, "The Ala, v. Fla. Prepaid 669-70 666, U.S. (1999); 54 (1996); States' Hans immunity instrumentalities.'" Sen., the Hibbs, Fla. state of against of Bank Pub. not of Univ. U.S. and 666 F.3d 244, Univ. of Cal. v. 248 Doe, (1997)). Amendment (quoting Hudson Congress may bar of the to Corp. suit v. abrogate immunity "'by making its language Trs. (1890)). agents (quoting 429 (1990)). Amendment 15 v. 517 Prince George's Cnty. Eleventh however." Florida, 1, suits Kimel v. 527 does Human Res, of Coll. Bd., v. U.S. Bd. (2001); (2000); 'state 2012) "'The 304 134 to 363 Fla. Constitution over Pep't of (citing Expense Seminole Tribe of v. Nev. 356, the jurisdiction nonconsenting States." U.S. "that statute,'" 10 is Feeney, a not 4 95 state's absolute,' U.S. 299, Eleventh intention unmistakably clear Dellmuth v. Muth, 491 U.S. 223, 228 U.S. 234, permits (1989) (quoting Atascadero State Hosp. 242 suits (1985)). for In addition, prospective "'the injunctive v. Scanlon, Eleventh relief 540 U.S. 431, Finally, immunity by state invok[ing] Federal declaration of Va. at may Line (E.D. R. Read, 322 U.S. Here, 273 [or] Plaintiff Dist. Gunter Great N. clear Amaram v. LEXIS 101246, v. Life the not argue that Atl. Ins. Defendants state instrumentalities.'" (quoting Doe, by (1906); "a jurisdiction." (citing (2004)). "voluntar[ily] making 2006 U.S. 2006) does Coast Co. v. ADEA acknowledges are not Lee-Thomas, 666 519 U.S. at 429). Nor does he assert Eleventh Commonwealth's abrogated by 437 666 (1944)) . Plaintiff F.3d at 248 the U.S. 47 "'state agents that 14, or Federal 3:06-CV-444, Sept. 200 own jurisdiction" No. Va. Co., its submission to State Univ., *2 waive state Lee-Thomas, F.3d at 249 (quoting Frew v. Hawkins, a Amendment against officials acting in violation of federal law.'" 473 Amendment immunity or that waived "Kimel by has Defendants. bars any action been Indeed, by him for money damages or any kind of retrospective compensation against the Commonwealth of Virginia." 17; 537 cf. Rayqor v. (2002) validly Kimel, (noting abrogate 528 Regents U.S. at that the PL's Br. of the Univ. "Kimel States' 91-92)). held of Minn., that sovereign Rather, 11 in Opp. the at 5, 534 U.S. 'ADEA immunity'" Plaintiff ECF No. asserts 533, does not (quoting that he requests only "prospective injunctive regarding his ADEA claim and seeks Federal Rule Complaint his of to Civil "insert Procedure the individual capacity, Opp. the at 4, 5-6, Court ECF No. name as from considering currently alleged, declaratory leave of Court, 15(a), of the a proper 17. and to pursuant amend University relief" his to Amended President, Defendant." PL's in Br. in Because the Eleventh Amendment bars Plaintiff's ADEA claims as they are Plaintiff's ADEA claims are DISMISSED WITHOUT PREJUDICE. 2. Leave of Court to Amend - Rule 15(a) Under Rule 15(a) of the Federal Rules of Civil Procedure, a party who has already amended his complaint "once as a matter of course" must obtain "the opposing party's written consent or the court's leave" Civ. 15(a). P. in order to amend the again. Fed. R. "The court should freely give leave when justice so requires," id., on complaint and should not "avoid decisions on the merits the basis of mere technicalities of pleading," Burns v. AAF- McQuay, F.3d Inc., 292 (4th 980 F. Supp. Cir. 175, 1999). 177 (W.D. Va. be sure, "outright To 1997), aff'd, 166 refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Rules." amend Foman v. may be Davis, denied 371 "if U.S. the 178, court 12 182 (1962). finds 'any Federal A motion to apparent or declared motive reason on such part the - of opposing party futility of (quoting Foman, First Com. by the alone amend." Edwards Cir. 1999) the is at F.2d v. Burns, 1986)). 182; of 497 "Rather, amend his argue Amended Defendants' that F. Supp. [or] at 1987)). 177 Inc. Serv., to the v. However, deny leave to 178 F.3d 231, 242 (4th Co., 785 F.2d 503, the delay must be accompanied by Id. Plaintiff Complaint to Foods Oroweat prejudice, bad faith, or futility." Defendants reason dilatory amendment, Elecs. (4th Cir. or prejudice of 980 Ward Goldsboro, v. faith . . . undue insufficient City bad allowance 496, (citing Johnson 509 (4th Cir. of U.S. an delay, movant amendment.'" 819 "[d]elay undue virtue 371 Bank, as "to should add not a defendant" new be allowed to because sovereign immunity as an agency of the Commonwealth of Virginia "has been settled law for more than a dozen years," long before Plaintiff filed his lawsuit, Defs.' Br. at 5, ECF No. 19. However, "about six months ago." Defendants do not assert any prejudice or bad faith regarding Plaintiff's delay in naming the proper defendant Plaintiff's ADEA claim, would not of "prejudice, F.3d 242 (citation for leave request his Amended to Complaint, or that if brought against the proper defendant, survive a motion to dismiss. evidence at in bad faith, omitted), amend his 13 or the Accordingly, futility," Court Amended GRANTS finding no Edwards, 178 Plaintiff's Complaint for the "purpose of inserting the President of Norfolk State University, in his individual capacity, at 8, ECF No. as a Defendant," PL's Br. in Opp. that "statistical 17. B. Plaintiff's Amended EPA Claim Complaint alleges analyses" of "sample data from departments within the University community" show against men, and that "impermissibly and in favor of women, responsibilities, violation of Defendants the EPA. and skill Plaintiff's salary Compl. Defendants argue that Plaintiff's because of comparable qualifications in PL's Am. discriminat[ed] assignments," SIS! 10, 14, ECF No. in 12. EPA claim should be dismissed "salary study - the core factual assertion of sexual inequity in pay - does not provide facts sufficient to support a prima facie violation of the EPA." ECF No. 14. Specifically, Amended Complaint 'equal work on skill, effort, fails jobs to the compare similar working conditions.'" Plaintiffs "male performance and responsibility, Br. at 14, contend that Defendants Defs.' of and which females doing requires equal and which are performed under Def.'s Reply Br. at 5, ECF No. 19 (quoting 29 U.S.C. § 206(d)(1)). To establish under the EPA, has paid a prima facie a plaintiff must different wages to case show: employees of wage discrimination "(1) that [his] of opposite sexes; that said employees hold jobs that require equal skill, 14 employer (2) effort, and responsibility; and (3) that similar working conditions." F.3d 598, Brennan, 613 (4th 417 U.S. titles, however, performance are Corp., 188, jobs 1999) (citing controlling." 288 performed under Corning 195 (1974)). 282, are Brinkley v. Harbour Rec. "Job are not decisive. F.2d 503 Cir. such Actual Brennan (4th Cir. v. Club, Glass required in [substantially] equal those employee." Cir. to Prince Wheatley v. 2004) a Wicomico Cnty., (citing Corning Glass Works, and William Hosp. Therefore, job of v. job requirements and 1974). [his] Works descriptions burden falls on the plaintiff to show that the skill, responsibility 180 "the effort and performance higher-paid 390 [fe]male F.3d 328, 417 U.S. are 332 (4th at 195). 1. Wage Difference between Sexes Plaintiff's "male Associate Norfolk State Plaintiff woefully Amended Professor in University." alleges that inadequate," faculty." Complaint Id. PL's he SI 11. Although specifics regarding finds that, least at the this that Department Am. to Mathematics that "his salary was the salaries differences 613. 15 at 12. of in of "female Amended Complaint salary, the litigation, [his] Court Plaintiffs employer has paid different wages to employees of opposite sexes." F.3d at a ECF No. Amended Complaint sufficiently alleges "that 180 is SI 1, Plaintiff's stage of Plaintiff Compl. discovered compared lacks at the asserts Brinkley, 2. Equal Skill, Effort, and Responsibility under Similar Working Conditions Plaintiff alleges least "the as qualified" as responsibilities PL's Am. Compl. in his Amended Complaint higher-paid of SI 11, the "female job were ECF No. 12. that "he was at faculty" essentially He further and that equivalent." contends that Defendants were "in violation of the Equal Pay Act" because they were "impermissibly discriminating against men, women, of comparable skill." Id. SI 14. qualifications However, and and in favor of responsibilities, Plaintiff asserts no and facts in support of his allegations and his "formulaic recitation of the elements of a at Although 555. qualified" and that as Univ., (E.D. female SI 7, he No. Va. respective a greater 3:12cv00826, Feb. 7, skills, Id. Indeed, "an bare allegation' "he was the higher of the no [fe]male salary," U.S. effort, and that [he] [faculty] no LEXIS plaintiff receiving 16 as salaries, who 'Associate [Plaintiff] v. Va. 16875, comparisons lower least the skills, an can 'cannot U.S. essentially to as responsibilities Act is [him] Dist. "Therefore, Pay reference 550 at were Noel-Batiste 2013). Equal job[s] required of 2013 Twombly, that "has made or to those of the receive do." earning faculty responsibilities id. not asserts and responsibilities Professor' alleges Plaintiff the "the equivalent," effort, cause of action will at of be rest pay State for *17 their made." on the equal work; an appropriate (4th 167 to [he] must also show that the comparison Cir. 1995) (4th Cir. make a that That, on and fails is and of thus did under Accordingly, F.3d more statistical Amended analyses" of University community" pattern or violation allege hold than prove different salaries. the Pay Act." any jobs and practice of Title Title VII Equal facts that showing require "that such that equal jobs are 180 F.3d Complaint "sample show VII, of Claim alleges data that discrimination, causing "disadvantaged in faculty." that PL's Am. Compl. Plaintiff's Plaintiff of alleges Title no VII "facts 17 "engag[ed] on within in race," faculty of a in equal and job assignments" to be salaries, SIS! 10, "inferential departments based "[b]lack and responsibilities, terms from that Defendants qualifications, because failed Plaintiff's EPA claim is DISMISSED WITHOUT PREJUDICE. Plaintiff's argue 164, because Plaintiffs Amended responsibility" C. the 950 F.2d performed under similar working conditions," Brinkley, at 613, 943, [Plaintiff] no paid actionable 55 is making is Md. , 778 case, are "employees and Trs., instant sufficiently female effort, not of Univ. v. faculty] 950. to Bd. Soble "In the [female 55 F.3d at v. comparison, own, higher-paid skill, 1985)). its Complaint Strag (quoting proper [he] Strag, one." [he] 13, as compared ECF No. claim 12. should from which white Defendants be the to dismissed Court [can] infer discriminatory motives in the pay variance described" and because Plaintiff fails to allege facts showing that his job "was substantially similar to a higher paying job performed by a . . . white professor." To establish under Title VII, a Defs.' Br. at 10, 11, ECF No. 14.4 prima facie case a plaintiff must show: of a protected class," and (2) of (1) "that the wage discrimination that he is "a member job [he] occupied was similar to higher paying jobs occupied by [employees outside the protected 336, class]." 343 (4th Cir. observed, Brinkley-Obu 1994).5 "statistics v. Hughes However, cannot alone (4th Cir. prove aff'd en banc, F.3d 835 the existence of a or even establish a prima Warren v. Halstead Indus., 1986), 36 as the Fourth Circuit has pattern or practice of discrimination, facie case." Training, Inc., F.2d 535 802 F.2d 746, (4th Cir. 753 1988). Although a plaintiff is not required as a matter of law to point to a similarly situated discrimination claim, 333 545 F.3d sufficient treatment 536, facts from Bryant (4th Cir. comparator v. 2003), establishing similarly Aiken that situated protected class," Coleman v. Md. to Reg'1 his succeed Med. Inc., must allege received employees Court of Appeals, a Ctrs., complaint he on "different outside the 626 F.3d 187, * Plaintiff's Amended Complaint alleges only race discrimination under Title VII. 5 The parties do not dispute that Plaintiff is "a member of a protected class." Brinkley-Obu, 36 F.3d at 343. 18 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)). Plaintiff the describes Department of Mathematics PL's Am. Compl. SI 1, white himself as at ECF No. 12, faculty simply as Norfolk a from an employee a comparator is indeed similarly situated.'" 178817, 387 *9 F. facts (E.D. App'x LLC, Va. 355, "'dealt with standards the [or] Dec. 359 establishing No. 2013) (4th Cir. that same case depends I:13cvl207, 19, he and or the mitigating it.'" Thus, Lawrence, although 2013 Plaintiff job recitation assignments," higher-paid [were] of the elements Twombly, 550 U.S. at 555. of Am. a the Global Dist. LEXIS Locke, subject white to faculty the same same conduct without such Dist. contends PL's U.S. circumstances U.S. class,'" Plaintiff asserts no LEXIS that Compl. cause of that would treatment of them 178817, "[b]lack "white faculty" had "equal qualifications, and 'completely upon Lawrence v. distinguish their conduct or the employer's for However, upon whether that 2013 2010)). supervisor, SI 2. (quoting Haywood v. . . . engaged in the differentiating in University," non-protected [his] Solutions, facie id. allegations "'validity of Linguist prima Professor State "teaching faculty," [his] to "Associate and refers to the higher-paid because Plaintiff "has based comparison an at faculty" *10. and and responsibilities, SI 13, action a "formulaic will not do." Accordingly, because Plaintiff "fails 19 to establish [the a plausible higher-paid basis white situated," Coleman, for believing faculty] were 626 F.3d at 191, [Plaintiff] actually and similarly Plaintiff's Title VII claim is DISMISSED WITHOUT PREJUDICE. D. Plaintiff's to Retaliation Claim Amended Complaint Defendants' "uneven alleges treatment of that [the] his resistance faculty" and "his having filed charges of discrimination with the Equal Employment Opportunities Commission . . . triggered a wave of retaliatory acts that created a hostile and intimidating environment within which he was forced to operate." 12. of insecurity belittlement" conditions was of his retaliation should exhaust Plaintiff's adverse his participation in job, be severe SI 20, ECF No. creating an argue occurred to that and, allege Defs.' any of Br. the working Plaintiff's Plaintiff in [and] alter abusive because "protected activity." 20 to because remedies fails 14. ridicule, as dismissed Complaint that public Defendants administrative Amended action" his employment, Id. claim in "sufficiently environment." No. Compl. Plaintiff further contends that his "public embarrassment, feelings to PL's Am. any failed event, "materially Plaintiff's at 12, ECF 1. Exhaustion of Administrative Remedies Plaintiff filed a Charge of Discrimination with the EEOC on December 8, 2011, "alleging discrimination on the basis of race, gender, and age." PL's Am. "particulars" section of that "[o]n or tenured instructors presented University, to and the 12. In the Plaintiff reported 4, 2008 . . . [he] learned that as was paid less than assistant the ECF No. [he] member and SI 11, Plaintiff's Charge, about April faculty Compl. Board professors. of Provost These Visitors, the hired findings President University. were of the No corrective Defs.' Ex. 1, ECF No. 14-1.6 action has been taken." of the newly a Plaintiff also alleged in his EEOC Charge his belief that "on the basis of sex (male) and age I continue younger and female employees." Generally, administrative U.S.C. § a Title remedies remedies VII A . . be paid unequal wages than exhaust all charge. 42 Id. plaintiff through 2000e-5(f) (1) . administrative to an must initial plaintiff's . deprives EEOC failure the "to federal exhaust courts of 6 Plaintiff's EEOC Charge of Discrimination was attached to Defendants' brief in support of their Motion to Dismiss. "Although as a general rule extrinsic evidence should not be considered at the 12(b)(6) stage, [the Fourth Circuit has] held that when a defendant attaches a document to its motion to dismiss, 'a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.'" Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 234 (4th Cir. Va. 2004) (quoting Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 21 1999)). subject matter Grp., Ltd., Circuit 551 F.3d has held claim for the is jurisdiction over "for first filing 584, 590 that the (4th Cir. judicial complaint and can be the F.3d 234, 247-48 the general occurred Wright v. raise related follow from a plaintiff may the v. 2009). [a] v. Calvert The Fourth retaliation when the Nealon retaliation Stone, to advance Miles v. Dell, such Inc., First 2000)). [his] reasonable 958 plaintiff filed Carfax, Inc., administrative claims in [his] this Bank, 202 exception to alleged retaliation an administrative 120 Fair Empl. Prac. 1723, 2013 U.S. Dist. LEXIS 170419, [his] EEOC charge Union Nat'l "the F.2d 429 F.3d 480, 491 However, rule does not apply when complaint." (BNA) reasonably (4th Cir. before Jones "[I]f a plaintiff's claims in (quoting Smith v. 2005) Cir. court" charge." 1992). subsequent civil suit." (4th Cir. (4th in federal first are 300 claim." "a plaintiff may time expected to investigation, 297, the at *13 Cas. (E.D. Va. Dec. 3, 2013). Most of the "retaliatory acts" Amended Complaint occurred before Compl. SI 20. Plaintiff asserts alleged December 8, that during in Plaintiff's 2011. PL's Am. "all of 2011," he was denied "the right to present an oral report." Id. of Visitors 2011, Plaintiff's "reports to the Board omitted . . . from the BOV meeting handbook." 26, 2010, the University demanded 22 "copies of Id. of In March were On October [Plaintiffs] emails pertaining to the most recent presidential search." Id. In the Fall of 2011, the University disposed of certain property and blamed refused Plaintiff. "to meet communications." 2011," the Id. with On September [Plaintiff] , or Id. From even "January, contract." Id. occurring after December 8, In 2011 fact, are 2011, to 2010 Board attempted "to induce the [Plaintiffs] 6, Defendants respond through Provost to to his February, terminate the only acts allegedly the denial of Plaintiff's "most recent request for sabbatical leave,"7 the 2012 denial of Plaintiff's "right to present an oral report of the Board of Visitors," and the ... at meetings omission of Plaintiff's "report [] to the Board of Visitors . . . from the BOV handbook" in December 2011. Id. Plaintiff's EEOC complaint alleged only pay discrimination, as evidenced by the boxes on the EEOC form marked "race," "sex," "age," and "other - Equal Pay," as well as Plaintiffs narrative complaining of "unequal wages." Defs.' Ex. 1, ECF No. 14-1. Plaintiff did not check the "Retaliation" box on the EEOC form. Id. Nor did Plaintiff claim for retaliation directly describe "raise in his taking anything charge to any actions remotely the resembling EEOC. that would a He did not generally 7 Plaintiff's Amended Complaint does not specify the date of his request for sabbatical leave. Because the Court "must construe the complaint in favor of the plaintiff," Warth, 422 U.S. at 501, the Court deems this request to have occurred after his filing with the EEOC. 23 provoke retaliatory action, and he 'retaliate' or any of its forms." 170419, 124, at *15. 132-33 Cf^ Bryant v. (4th Cir. 2002} does not Wright, even use the word 2013 U.S. Dist. LEXIS Bell Atl. Md., Inc., 288 F.3d (declining to consider plaintiff's retaliation claim where plaintiff failed to complain to the EEOC of retaliation and an "investigation of retaliation . . . could not reasonably be expected to occur in sole charge of race discrimination"). claim made reasonably Wright, in [Plaintiff's relate to 2013 U.S. the Dist. light LEXIS [plaintiff's] Because "the retaliation Amended] claims of made 170419, [C]omplaint in at his *17, does [EEOC] not charge," the Court finds that Plaintiff did not exhaust his administrative remedies as to the "retaliatory acts" alleged in his Amended Complaint. 2. "The Title VII Prima Facie Case of Retaliation elements are: of (1) a prima facie in adverse employment action; and a protected (3) engagement retaliation claim a causal link between the activity; protected activity and the employment action." F.3d at 190 (citing Mackey v. 360 F.3d 463, Cir. 2004)). Shalala, under Coleman, (2) 626 469 (4th Even if Plaintiff's retaliation claim was allowed to proceed as to the acts occurring after the filing of his charge with the EEOC, Complaint fails to Defendants argue that Plaintiff's Amended allege adversity" and "causation." any facts establishing "material Defs.' Br. at 12, ECF No. 14. 24 a. Adverse Employment Action Plaintiff that alleges seven "retaliatory acts" by subjected insecurity in him his to job, PL's Am. Compl. SI 20. discriminatory conditions, act or Holland v. "public public "An Wash. Homes, ridicule, adverse that benefits embarrassment, of Inc., the 487 Cir. "adverse 2004)). A employment retaliation challenged if action" "a action hostile prong means it well might have Inc., action of the adverse, the may 2007) would facie in the case for found have which 375 satisfy the this 'dissuaded a reasonable & Santa Fe Ry. Co. v. White, terms, 368 F.3d 371, prima a employment.'" context worker making or supporting a charge of discrimination.'" N. is (4th Cir. environment employee materially 219 of belittlement." plaintiff's F.3d 208, work reasonable [and] affect[s] (quoting James v. Booz Allen & Hamilton, (4th feelings employment 'adversely Defendants from Burlington 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1217-18 (D.C. Cir. 2006)); see also Von Gunten v. Maryland, ("Retaliatory action."), 68. harassment can F.3d 858, constitute To advance such a claim, or 869 pervasive employment and create to alter that employment 548 U.S. at 67- the was "sufficiently of [his] EEOC v. Cent. conditions an abusive atmosphere." 25 2001) a plaintiff must show that his unwelcome conduct as (4th Cir. adverse overruled on other grounds by White, employer engaged in severe 243 Wholesalers, employer's Inc., action 573 is F.3d 167, 175 not materially (4th adverse Cir. if 2009). An it amounts to "petty slights or minor annoyances that often take place at work and that all employees experience." Plaintiff's "formulaic [hostile work environment] at 555, and to - namely, that recitation cause the conditions SI 20, ECF No. 555. of his 548 U.S. at 68. of the action," elements Twombly, subjected him to that was of 550 a U.S. "a hostile "sufficiently severe as employment," PL's 12, - simply "will not do," Twombly, Am. Compl. 550 U.S. at Plaintiff presents no facts showing how any of Defendants' actions "adversely affect[ed] of of Defendants intimidating environment" alter White, [his] employment." the terms, Holland, Plaintiff allege that Defendants' 487 conditions, F.3d at or benefits 219. Nor does actions "dissuaded [him] from making or supporting a charge of discrimination." White, U.S. Defendants' at 68. . Indeed, as discussed above, most of 54 8 alleged "retaliatory acts" occurred before Plaintiff made his official charge Defendants' of actions discrimination were, at worst, to the EEOC. "normally Because petty slights, minor annoyances, and simple lack of good manners," White, 548 U.S. at 68, Plaintiff fails to allege that he suffered "adverse employment action," Coleman, 626 F.3d at 190. 26 an b. Causal Link between Protected Activity and Adverse Employment Action "An employee need not prove causation itself at the prima facie case stage: rather, a close temporal relationship between the protected activity and the adverse show a causal nexus." (4th Cir. 2007) 446 F.3d 541, closeness requisite onerous Inc., 551 in time causal 446 (4th Cir. Plaintiff 'far from of F.3d making at 457 a 551 alleges "While certainly prima facie (quoting seven evidence EEOC - December 8, 2011. or timeframes or for as to establishes satisfies to 207 the the the less case of causality.'" Williams v. Cerberonics, 1989)). retaliatory 2010 and July acts 3, by 2012. supplies only the date of his charge inequities" sufficient 217 F. App'x 201, conclusively it (4th Cir. occurring between January, dates 2006)). connection, 871 F.2d 452, Complaint Snow, is (citing Yashenko v. Harrah's NC Casino Co., LLC, burden Yashenko, Brockman v. action Defendants, His Amended filed with the Plaintiff fails to allege any specific corresponding to his "fight against his vocal and "having critic of the NSU administration." been a salary persistent PL's Am. Compl. SI 20.8 In 8 Plaintiff asserts that "the EEOC filing was not the only protected activity engaging [his] attention, active participation, and commitment," but "was just one of the several and continuing acts which triggered the Defendants' response." PL's Br. in Opp. at 6-7, ECF No. 17. For purposes of this discussion, the Court assumes without deciding that Plaintiff's "fight against salary inequities" or "having been a vocal and persistent critic of the NSU administration" 27 light of the Court's determination administrative remedies and material regarding exhaustion adversity, the Court of need not examine each alleged retaliatory act to determine whether he has established prima facie "closeness case Accordingly, of in time" causality." because sufficient Yashenko, Plaintiff to 446 failed "mak[e] F.3d 551. exhaust to at his administrative remedies as to his retaliation claim and, event, Defendants against him, is DISMISSED WITHOUT E. As more amend the 17. determined state, Court has his Amended of individual capacity, No. And, that retaliation claim PREJUDICE. President the Plaintiff's Leave to Amend to Cure Deficiencies discussed, inserting ECF in any fails to present any facts showing an adverse employment action by once a granted Complaint Norfolk discussed Plaintiff's Plaintiff to "purpose of University, PL's Br. at Amended to the for State as a Defendant." as leave length, in Opp. the Complaint, in in his at 8, Court its has current is insufficient to support any of his discrimination and retaliation claims. Plaintiff amend his Defendant has Complaint or this not expressly regarding Court. requested leave any deficiencies However, because it to further identified is at by least qualifies as a "protected activity" for purposes of his retaliation claim. Id. 28 conceivable support that his Plaintiff could discrimination GRANTS Plaintiff Opinion and fourteen Order, if he and set sufficient retaliation (14) so forth days desires, claims, from to the file facts the date a Court of Second to this Amended Complaint curing the deficiencies identified herein. IV. CONCLUSION For the reasons stated above, is GRANTED. Plaintiff desired, Plaintiff's is a ORDERED Second to claims file Amended Defendants' Motion DISMISSED WITHOUT are within Complaint fourteen curing (14) the to Dismiss PREJUDICE. days, if deficiencies identified in this Opinion and Order. IT IS SO ORDERED. /s/ Mark UNITED Norfolk, Virginia February \3> , 2014 29 STATES S. Davis DISTRICT JUDGE
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