Sullivan v. Perdue Farms, Inc., No. 2:2015cv00225 - Document 9 (E.D. Va. 2015)
Court Description: ORDER granting in part and denying in part 4 Motion to Dismiss for Lack of Jurisdiction; Motion to Dismiss for Failure to State a Claim. The Defendant's Motion to Dismiss is GRANTED with respect to Count I and the constructive discharge claim in Count II. However, the Defendant's Motion to Dismiss is DENIED with respect to the Plaintiff's claims of his discipline and ultimate suspension and his reduction in hours in Count II. Copy of Memorandum Opinion and Order provided to all parties as directed. Signed by Chief District Judge Rebecca Beach Smith on 9/23/2015. (bgra)
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Sullivan v. Perdue Farms, Inc. Doc. 9 FILED UNITED STATES DISTRICT EASTERN DISTRICT OF COURT VIRGINIA SEP 2 3 2015 Norfolk Division CLERK, US DISTRICT COURT FRANCIS (FRANK) NORFOLK. VA SULLIVAN, Plaintiff, CIVIL v. PERDUE FARMS, NO. 2:15cv225 INC., Defendant MEMORANDUM This matter comes Pursuant to 12(b)(6) ("Motion"), Support, ECF "Defendant") filed his Federal No. before the Rules of 5, 4, both filed 2015. AND court ORDER on the Motion to Dismiss Civil ECF No. on July 31, Procedure and accompanying by Perdue Frank Sullivan The matter has reasons filed a Reply on August been fully briefed and that follow, the 17, and Memorandum Inc. in (the (the "Plaintiff") 2015, ECF No. 6, 2015, ECF No. 7. is ripe Defendant's 12(b)(1) Farms, Response to the Motion on August 11, and the Defendant the OPINION for Motion review. is For GRANTED in claims of part and DENIED in part. I. This employment action FACTUAL AND arises discrimination. Perdue in 2006. Compl. H 12, PROCEDURAL from The the HISTORY Plaintiff's Plaintiff began working for ECF No. 1. He accepted a promotion Dockets.Justia.com with lower pay in 2007 under the term that overtime compensation would equal his original salary. Id. at the age of sixty-four, prostate cancer and had from treatment. able to Id. perform accommodations, Burke, all Plaintiff diagnosed the functions Plaintiff's him that of his job he was without shift supervisor, would he with home recovering When he returned to work, essential informed was to spend six weeks at Uf 18-19. but still the UH 14-17. In January 2013, be Thomas reporting "any problems" with the Plaintiff's work. Id^ S% 23-24, 26. In March Perdue, or directed April 2013, another Carl Barnes, supervisor, Larry a supervisor Moen, to at fabricate poor performance reports for the Plaintiff's employment record. Id. 1 32. Moen refused to create believed Perdue that the Farms." Plaintiff's Plaintiff Id. office H to him to walk farther, was 33. a In less the false reports because he "one of April the 2013, suitable best employees Barnes location, moved at the which required and through a refrigerated area, to reach the machines he supervised. Id. 1M 34-37. Barnes also suspended the Plaintiff for failing to submit invoices, at Perdue had told the Plaintiff not to although managers submit the invoices. Id. Uf 38-39. The Plaintiff had not previously been disciplined for poor work overturned his reduced from performance. suspension, 50 hours to the 40 Id. 11 27. After Plaintiff's hours due to weekly a peer-group schedule claims of was "budget considerations." Id. fl 49. In believed Id. May HH 40-45. 2013, his However, the working his Plaintiff workload increased. resigned conditions because had he become intolerable. Id^ %S 60, 82. On August 30, 2013, the Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC").1 Id. the charge, impaired" was the and still position." Plaintiff stated that he informed the Defendant of his "able to Compl. perform Ex. B, at the 2. essential The "became H 9. medically impairment, functions Plaintiff In but he of further [his] alleged that he was suspended, his shift supervisor was told to report problems regarding his work, also checked disability. as March 1, boxes Id. for and his discrimination The earliest date of 2013, office was based on both Id. He age discrimination was and the latest date was April The box for "continuing action" was not checked. 1 The court notes that the Complaint, moved. 10, and listed 2013. Id. Id. His charge Brief in Opposition, and charge document allege different dates of filing and perfecting the charge. The court accepts the dates stated in the Complaint as true and views them in the light most favorable to the Plaintiff, but notes that the different dates of filing could eventually affect the court's analysis of the case. Nevertheless, as the parties failed to raise the issue, the court does not resolve the discrepancy at this juncture. was perfected on April 12, 2014, and on March 3, issued a Notice of Right to Sue letter.2 Compl. M The Plaintiff Count I of Americans the alleges Complaint with Disabilities timely filed his Act discrimination Employment Act (the discrimination Act Amendments Act under and (the the "ADEA"). 9, 10. Complaint on June alleges Disabilities 2015, the EEOC the Compl. 2015. under the Americans "ADA"), Age 1, and with Count Discrimination H 1. II in Thereafter, on July 31, 2015, the Defendant filed the instant motion to which the Plaintiff responded on August 11, 2015. The Defendant then replied on August 17, 2015. II. STANDARD OF REVIEW A. Subject Matter Jurisdiction Under Federal Rule of Civil Procedure 12(b)(1) On a motion to dismiss pursuant to Rule 12(b)(1), "[t]he burden of proving subject matter jurisdiction . . . is on plaintiff, United States ex rel. the party asserting jurisdiction." Vuyyuru v. (quoting Adams Jadhav, v. Bain, 555 697 2 In his Opposition Brief, F.3d 337, F.2d 1213, the 348 1219 Plaintiff (4th (4th Cir. 2013, preparing Ex. his EEOC charge. he checked Id. at 3. PL's Br. 2009) 1982)). attached an Intake Questionnaire that he filled out on October 30, Questionnaire, discrimination. Cir. the Opp'n as part of A. In this only the box for age-related He then alleged that (1) his supervisor was directed to report any problems with his work; (2) his office was moved and he was suspended; (3) he underwent surgery for prostate cancer at the age of 64.5 years, and when he returned, his job description had changed; and (4) a peer group later overturned his suspension. Id. The plaintiff jurisdiction Id. at 347-48. meets exists A that by burden a defendant here — proving preponderance may jurisdiction pursuant to Rule Defendant does by of challenge 12(b)(1), subject the matter evidence. subject matter by contending — as the "that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based." Kerns v. United States, 585 F.3d (quoting Adams, 697 F.2d at 1219). 187, 192 (4th Cir. See 2009) "In that situation, the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Id. In the Plaintiff instant failed to case, the exhaust Defendant his asserts administrative that remedies the by including claims in his Complaint that fall outside the scope of the EEOC Complaint, contain charge. As such, the Defendant argues that when viewed with the attached EEOC charge, facts sufficient for the court to the does not exercise subject matter jurisdiction. B. Failure to State a Claim Upon Which Relief Can Be Granted Under Federal Rule of Civil Procedure 12(b)(6) Pursuant to Rule 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests only the sufficiency of a complaint; it does not resolve contests regarding the merits the of a claim, or Republican Party of N.C. 1992). applicability v. Martin, to relief 556 U.S. 550 U.S. that 678 544, (2009) 570 true, face.'" (quoting Bell (2007)). of any Facial 952 the defense. (4th Cir. a complaint must contain accepted as is plausible on its 662, the case, 980 F.2d 943, "To survive a motion to dismiss, sufficient factual matter, facts of to 'state a claim Ashcroft v. Atl. Corp. plausibility v. Igbal, Twombly, means that a "plaintiff pleads factual content that allows the court to draw the reasonable inference that misconduct alleged." Id. is, enough therefore, demonstrating not a "sheer the defendant (citing Twombly, for a is 550 U.S. plaintiff possibility" or liable to "mere [] for at 556). allege the It facts consist[ency]" with unlawful conduct. Id. (citing Twombly, 550 U.S. at 557). The Supreme Court, in Twombly and Igbal, offered guidance to courts evaluating a motion to dismiss: In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Igbal, 556 U.S. at 679. That is, the court accepts facts alleged in the complaint as true and views those facts in the light most favorable to the plaintiff. 417 F.3d should 418, not 420 grant "demonstrate[s] defendant has E.g., Venkatraman v. REI Sys., (4th Cir. the defendant's more than violated 2005). 'a his After so Motion, sheer rights, doing, if the possibility'" by Inc., the court plaintiff that "articulat[ing] the facts, when accepted as true, that 'show' that the plaintiff has stated a claim F.3d entitling 186, 193 him (4th to relief." Cir. 2009) Francis (quoting v. Giacomelli, Igbal, 556 588 U.S. at 677-78). III. A. Rule 12(b)(1) ANALYSIS Motion to Dismiss for Lack of Subject Matter Jurisdiction As "subject-matter jurisdiction is a necessary prereguisite to any merits decision by a federal court," the court must first address the Defendant's Constantine v. Rectors 474, Cir. 480 Better (4th Env't, 523 argument under & Visitors of Geo. 2005) U.S. (citing 83, Steel 89-101 Rule Mason Univ., Co. v. (1998)). 12(b)(1). 411 F.3d Citizens for a "Jurisdiction power to declare the law, and when it ceases to exist, is the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co., 523 U.S. at 94 (guoting Ex parte McCardle, 7 Wall. 506, 514 (1868)). "Thus, a federal court necessarily acts ultra vires when it considers the merits of a case over which it lacks subject-matter jurisdiction." Constantine, 411 F.3d at 480 (citing Steel Co., 523 U.S. at 101) . In order for a federal court to have subject jurisdiction in an employment discrimination case, must exhaust administrative remedies v. Huntington Ingalls Indus., Inc., before matter the employee filing 711 F.3d 401, suit. 406 Balas (4th Cir. 2013). Failure to properly exhaust these remedies "deprives the federal courts of Jones v. subject matter jurisdiction over the claim." Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Thus, as a prerequisite to bringing suit, a plaintiff must file a timely charge with the EEOC. Id. By filing a charge, the employee gives the employer notice and an opportunity for voluntary resolution of the claim. Chacko v. Patuxent Inst., intended the 429 F.3d 505, exhaustion 510 (4th Cir. reguirement to 2005) serve ("Congress the primary purposes of notice and conciliation."); Miles v. Dell, Inc., 429 F.3d 480, ensures 491 that (4th the 2005) employer so possible." 1981))). administrative through so lawsuit." charge that Chacko, an matter can on be not F.3d notice resolved Accordingly, is exhaustion Nat'l Bank, simply individual 429 ("The put (citing EEOC v. Am. Cir. the is violations (4th that Cir. 510. 8 of alleged court filing formality can quickly at out the 652 F.2d 1176, "[t]he a of requirement to file his Exhausting of be if 1186 an rushed subsequent administrative remedies is a vital Balas, discrimination. Once charge a 711 F.3d at 407. plaintiff "plays litigation part it a of files remedying an substantial precedes." Bryant v. Bell Atl. Md., of administrative role Chacko, Inc., claims in 429 charge, focusing F.3d at 288 F.3d 124, 132 employment the 509; that formal see (4th Cir. also 2002) ("The EEOC charge defines the scope of the plaintiff's right to institute a stated the in civil suit."). initial "Only charge, those those discrimination reasonably related claims to the original complaint [of discrimination in the charge], and those developed by reasonable investigation of the original complaint [of discrimination in the subsequent . . . lawsuit." Co. , 80 F.3d 954, Coast Line R.R., As such, 963 charge] may be maintained in a Evans v. Techs. Applications & Serv. (4th Cir. 538 F.2d 581, a charge may 1996) 583 (citing King v. (4th Cir. limit the Seaboard 1976)). scope of litigation, and allegations that fall outside the scope of the EEOC charge will be barred. nature of See Evans, 80 F.3d at in (holding that Balas's outside if the When determining the claims included in the charge, only to the charge filed with 408-09 962-63. intake [the EEOC] ." a court Balas, the "may look 711 F.3d at "claims based on allegations included only questionnaire the jurisdiction of the and letters are federal courts"). claims in the Complaint exceed the scope of therefore Accordingly, the charge, the plaintiff has failed to exhaust his administrative remedies, and the court lacks jurisdiction to hear the claims. Jones, F.3d at 300. In the instant case, the Plaintiff alleges under the ADA and the ADEA. In his Complaint, was under the and (2) discriminated constructively was the against discharged accommodations. under 551 he asserts that he because was denied he (1) was reasonable He next claims that he was discriminated against ADEA when he (1) was disciplined and suspended, in hours. ADA discrimination constructively discharged, and (3) experienced a reduction The court will address each of 1. Count I (2) these claims in turn. - The Plaintiff's Americans with Disabilities Act Claim The Plaintiff's first claim under the ADA alleges that he suffered an adverse employment action when he was constructively discharged cancer in earlier Complaint, May 2013 after in the year. being Compl. diagnosed fH 18, with 59-60, 82. making conditions intolerable, forcing him to resign. Id. UU 60, this In his the Plaintiff argues that the terms and conditions of his employment changed, however, prostate that claim the court because administrative lacks the remedies 68. The Defendant contends, subject matter jurisdiction over Plaintiff by and thus not failed including constructive discharge in his EEOC charge. Mem. 10 to the exhaust claim Supp. at 9-10. his of To support his claim of discrimination under the ADA, Plaintiff argues that the information in his the Intake Questionnaire should be included in the contents of the charge,3 but the Fourth Circuit has ruled against allowing questionnaires or letters to be used when determining the scope of Balas, the 711 F.3d at Plaintiff's Intake 4 08-09. argument Questionnaire, he indicating a disability. did not discuss However, and even if included nevertheless the the charge. the court accepted information failed to check PL's Br. Opp'n Ex. A, at either of his ADA claims - 3. in his the box He also constructive discharge and failure to provide reasonable accommodations - and he stated that the latest date of discrimination occurred in April 2013. Id. at 1, 3. Accordingly, the facts contained in the Intake Questionnaire would not change the court's analysis. As EEOC such, charge the court must now review only the to determine administrative claim of Evans, the the First, remedies. if the constructive discharge was 80 F.3d at suspension 963. and While the his office Plaintiff court must stated in facts in the exhausted his decide if the charge. See the Plaintiff did briefly mention relocation in the charge, he failed to raise the issue of his constructive discharge at that time. Compl. Ex. B, at 2. 3 See supra note 2 11 Although the Plaintiff discharge in his charge, did not discuss the constructive the court may still have jurisdiction, if the constructive discharge claim is reasonably related to the claims laid out in the charge or is likely to be reasonable investigation into the charge. 963. In his Complaint, the developed by See Evans, Plaintiff 80 F.3d at states that the constructive discharge occurred in May 2013,4 more than a month after April 10, 2013, the date date of discrimination. the charge lists as the latest The Plaintiff also did not check the box for continuing action when he filled out the charge. Thus, the constructive discharge can be seen as a distinct event, separate from were the suspension and discussed in his the office charge. relocation, both of Furthermore, which although the Plaintiff's Complaint alleges intolerable conditions that led to his resignation, allegation. As the such, Plaintiff's the charge constructive does not discharge reasonably related to the contents of the charge, reasonable investigation of lead to the Accordingly, discovery this of make that is not nor would a the claims contained in the charge the claim falls alleged outside constructive the scope of discharge. the charge and is therefore procedurally barred. 4 The only date related to the constructive discharge in the Complaint was May 2013. Compl. H 82. The Brief in Opposition, however, gave the date of the discharge as May 31, 2013. PL's Br. Opp'n 10. 12 The Plaintiff's second claim under to provide reasonable accommodations. the ADA is for failure This claim is also barred. The charge makes no mention of accommodations or attempts by the Plaintiff fact, to contact the Defendant to discuss the issue. In the Plaintiff alleged that he could "perform the essential functions of [his] position".5 Compl. Ex. B, at 2. As such, the claim of failure to reasonably related to reasonable provide investigation administrative accommodations into the is in the limited claims discovery of this claim. his reasonable and no charge the charge, would lead not to the Because the Plaintiff failed to exhaust remedies, the court jurisdiction lacks to consider both claims in Count I of the Complaint. 2. Count II - The Plaintiff's Age Discrimination in Employment Act Claim In the second count of his Complaint, three claims of discrimination under the the Plaintiff alleges ADEA. He contends he was subjected to adverse employment actions when he constructively suspended, discharged, and Compl. UH 80-82, (3) 86-88. (2) was disciplined experienced As with a his discharge under the ADA in Count I, and reduction claim of (1) that was ultimately in hours. constructive this Count II constructive discharge claim under the ADEA is barred for failure to exhaust 5 The court also notes that in his Complaint, the Plaintiff states that he did not require "on-site accommodations," and he does not mention any attempt to meet with management to discuss potential accommodations. Compl. H 24. 13 administrative on the remedies. charge resigned, and is The more last than date a of month discrimination before the listed Plaintiff the alleged constructive discharge is a separate event that is not reasonably related to the limited information in the charge.6 As a result, the court lacks jurisdiction over the claim of constructive discharge under the ADEA. The Plaintiff's discipline Plaintiff and second ultimate stated that claim suspension. he was prior disciplinary problems. argues only that in reference relation because the mention of However, based the to the Compl. the Ex. the ADEA his charge, the his EEOC even though he B, at suspension Plaintiff's concerns had no 2. The Defendant in the disability, not charge his is age, the suspension immediately follows Plaintiff's prostate cancer. Mem. Supp. at a 10. the Plaintiff checked the box indicating discrimination on age and wrote that he "believe[s] discriminated against in discipline (64)." In suspended, to discussion of the under Compl. Ex. B, at 2. that . . . because of These allegations are [he] was [his] age enough to demonstrate that the Plaintiff included his ADEA discipline and suspension claim in the charge. Consequently, the court has jurisdiction to consider this claim. The third claim in Count II alleges discrimination based on the Plaintiff's reduction in hours. 6 See supra Part III.A.l 14 As this claim is not stated in the charge, related to during the a claims in reasonable specify the but the court must consider whether it is reasonably the charge or investigation. date on which the could The be discovered Complaint Plaintiff's does hours were not reduced, the action appears to have happened around the time of the suspension and relocation of the Plaintiff's office sometime in April 2013. Compl. HH 34-46. Thus, the events appear to be similarly situated in time. Further, Carl Barnes, facts in the Plaintiff's supervisor, instituted all three actions. Complaint as true, an the to the counts in Accepting investigation suspension and office relocation could the reduction in hours. Id. the into the lead to a discovery of Because this claim is reasonably related the reasonable investigation, charge and likely to arise from a the court has jurisdiction to consider this claim. Accordingly, the court GRANTS the Defendant's Rule 12(b)(1) Motion with respect to Count I and the constructive discharge claim in Count II and DENIES the Defendant's Motion with respect to the claims of the discipline and suspension, hours and reduction in in Count II. B. Rule 12(b)(6) Motion to Dismiss for Failure to The discharge court claim has in State a dismissed Count Count II 15 for Claim I and lack of the constructive subject matter jurisdiction. remain: However, (2) 86-88. of the Plaintiff's Count II claims that he suffered adverse employment actions in violation of the ADEA when he and two (1) was disciplined and ultimately suspended experienced a The court will reduction in hours. now address Compl. the Defendant's ^ Rule 80-81, 12(b)(6) Motion with respect to these remaining claims. In order to make out a prima facie the Plaintiff must show that he class, i.e., action, (3) of the age 40 or older, (2) was a member of a protected suffered an adverse employment was meeting his employer's expectations at the time adverse action, favorably (1) case under the ADEA, than and someone (4) was replaced by or treated less outside the protected class See 411 U.S. (setting out the test for a prima facie case under Caterers Title Corp., (1973) VII); 517 see U.S. also 308, Douglas O'Connor 311-13 Corp. someone "substantially younger." 792, 802 McDonnell or v. (1996) v. Green, Consol. Coin (applying the McDonnell Douglas test to an ADEA claim). In this case, time of the the Plaintiff was sixty-four years old at the alleged adverse actions; thus, he satisfies the first prong of the test. Compl. t 11. As to the second prong, he claims that both the suspension and the reduction in hours were adverse employment actions. Id. 1H 80-81, 86-88. The Plaintiff provides multiple factual allegations in the Complaint regarding these issues. He discusses how he was suspended for failing to 16 submit invoices that management had told him not to pay, and that a peer group later overturned his suspension. Id. HH 38-41. He also alleges that his hours were reduced after he accepted a promotion under the term that he would work overtime in order to achieve a specific pay. Id. HH 44-47. Viewing this account in the light most favorable to the Plaintiff, he has provided facts sufficient to support the second prong of the McDonnell Douglas test. The court must then consider whether the Plaintiff provided enough factual allegations employer's expectations to that the at show time of he was meeting the adverse his employment actions. Although the Defendant argues that the Plaintiff does not provide Plaintiff any states facts in to his disciplined for poor suspension. Id. U supervisors refused 27. to Plaintiff Id. 1H 32-33. plausibly expectations at the this Complaint work because the Plaintiff was Farms." support He also "one of the had until test, never the that the been relevant one performance of his records the best employees at Perdue that the poor of he contends Accepting time of that performance fabricate alleges part these he adverse facts met as his actions, true, the employer's and thus, he satisfies the third prong under McDonne11 Douglas. The final step is to determine whether the Plaintiff has a plausible claim that he was treated less favorably than someone 17 outside the protected class. In his Complaint, the Plaintiff alleges that "Supervisor Carl Barnes . . . routinely singled out and treated older employees and/or those with medical needs differently than similarly situated employees in order to have them terminated." "Carl Barnes employee % 56. Id. routinely performance The Plaintiff falsified reports to or cast next contends attempted older to that falsify employees and/or those with medical needs in a negative light that would lead to the employees' Barnes termination." attempted to have Id. H another 57. He also supervisor, states that Moen, fabricate false reports about the Plaintiff. Id. HI 32-33. At the Rule 12(b)(6) warrant the inference stage, he that the treated was Plaintiff's less allegations favorably than younger employees. Once the factual record is developed through discovery, the evidence may not support this inference. However, accepting the allegations as true and giving the Plaintiff the benefit say that sheer favor. Cir. of all the Plaintiff possibility See, 2009) (2009)). e.g., that Accordingly, McDonnell factual inferences, the court cannot has failed to demonstrate more than a the balance in his of Francis v. Giacomelli, (quoting this juncture, the reasonable Ashcroft the v. Plaintiff interests 588 Igbal, has tips F.3d 186, 556 U.S. 193 (4th 662, 678 sufficiently shown, at that he satisfies the fourth and final prong of Douglas test. Consequently, 18 the Defendant's Rule 12(b)(6) Motion to Dismiss is DENIED with respect to the remaining Count II claims. IV. For the reasons set CONCLUSION forth above, Dismiss is GRANTED with respect discharge claim in Count II. the Defendant's Motion to to Count I and the constructive However, the Defendant's Motion to Dismiss is DENIED with respect to the Plaintiff's claims of his discipline and ultimate suspension and his reduction in hours in Count II. The Clerk is DIRECTED to forward a copy Memorandum Opinion and Order to counsel for the parties. IT IS SO ORDERED. 1st Rebecca Beach Smith -£jgr REBECCA CHIEF September *^3 - 2015 19 Chief Judge BEACH JUDGE SMITH of this
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