Reardon v. Herring, No. 3:2016cv00034 - Document 28 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 08/23/2016. (walk, )
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Reardon v. Herring Doc. 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division AUG 2 3 2016 CLERK, U.S. DISlAICT COURT RICHMOND VA ANN MARIE REARDON Plaintiff, v. Civil Action No. 3:16cv34 MARK R. HERRING, In his official capacity as General of Virginia, Defendant. MEMORANDUM OPINION This matter is before the Court on Defendant's MOTION TO DISMISS COUNT II OF PLAINTIFF'S AMENDED COMPLAINT For the reasons stated below, Defendant's COUNT II OF PLAINTIFF'S AMENDED COMPLAINT (ECF No. MOTION (ECF No. 21). TO DISMISS 21) will be denied. BACKGROUND Plaintiff Ann Marie Reardon Attorney General of Virginia employer, unequal unlawful ("OAG"), Attorney pay at the Off ice of the Attorney General brought General relative retaliation (Count II). 6) ( "AAG") ("Reardon"), a former Assistant to for this Mark her suit Herring male complaining her ("Herring"), counterparts about (Memorandum Opinion of June 3, ("June 3 Opinion"). against alleging (Count that 2016, former I) and unequal pay ECF No. 13, 1- Herring filed a motion to dismiss under Dockets.Justia.com Fed. R. Civ. P. opinion, the Court temporal connection alleged 12. (ECF found No. that between retaliation 5). As is Reardon' s the foreclosed relevant failure protected the for to plead any activity existence of a and the plausible causal link between her complaints and her termination. Opinion 4 8-52) . this (June 3 The Court dismissed Count II without prejudice and with leave to amend. (June 3 Opinion 52-53; Order, ECF No. 14}. Reardon then filed a First Amended Complaint ("FAC"), which included additional information Reardon' s pay complaints (FAC, about ECF No. the circumstances 18), of and Herring filed this motion to dismiss Reardon' s retaliation claim. (Def.' s Mtn. to Dismiss Count II of Pl.'s Am. Comp!., ECF No. 21). LEGAL STANDARD Fed. R. Civ. P. 12(b) (6) permits a party dismissal of a claim if the complaint fails upon which relief can be granted." Fed. to move for "to state a claim R. Civ. P. 8(a) (2} requires "a short and plain statement of the claim" showing that the pleader dismiss, a is complaint accepted as true, on its entitled face.'" to to must relief. contain "To survive sufficient a motion factual to matter, 'state a claim to relief that is plausible Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 2 Courts should allegations dismiss in assume the the veracity Complaint, and of should all deny where those well-pleaded allegations claim for relief. Id. at 679. well-pleaded a motion to state a plausible A claim is "plausible" when the plaintiff pleads facts sufficient to allow the court to draw the reasonable inference alleged misconduct. that Twombly, grant a motion to dismiss, nothing more the than legal defendant 550 U.S. however, at is liable 55. for the The court should where the allegations are conclusions, or where they permit court to infer no more than a possibility of misconducc. a Igbal, 556 U.S. at 678-79. ANALYSIS A. Elements of a Prima Facie Retaliation Claim The Equal Pay Act Labor Standards Act discharge employee or in because {"EPA"), as incorporated into the Fair {"FLSA"), 1 provides that it is unlawful "to any such other manner employee has discriminate filed any against an complaint or instituted or caused to be instituted any proceeding under or related to this chapter." 29 U.S.C. § 215(a) (3). Thus, to state a claim for retaliation, a plaintiff must plausibly allege: "(l) 1 O'Neill v. Allendale Mut. Ins. Co., 956 F.Supp. 661, (E.D. Va. 1997) (noting that the "Equal Pay Act incorporates§ 215(a} (3) of the FLSA."). 3 665 n. 8 directly engagement in protected activity, (2} 'materially adverse action ... which ... might well have dissuaded a reasonable worker from making or supporting a charge of discrimination,' causality." 2 Hinton v. Virginia Union Univ., No. WL 2621967, Santa Fe elements 515 *17 Rwy. (E.D. v. Va. White, of Title VI I F.3d 334, practice of 340 May 5, 548 U.S. in Title VII case law when 2008) (3) 3:15CV569, 2016 (quoting Burlington N. 53, retaliation) ; (4th Cir. courts 2016 and 68 (2006}) Darveau v. & (discussing Detecon, Inc., (noting the "almost uniform considering the authoritative body of interpreting the comparable provisions of other federal statutes," and applying Title VII case law to the FLSA) . The dispositive issue in the motion to dismiss the FAC is whether Riordan has plausibly alleged causality. showing of causality requires either: closely plaintiff between followed put the the forth protected protected a activity, sufficient activity 2 (1) and that A prima facie the retaliation or (2) explanation for the alleged that the the delay retaliation. To establish a claim for retaliation under the FLSA, a plaintiff may offer direct evidence that she was retaliated against because she engaged in protected activity, or apply the \\burdenshifting" scheme initially articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which requires that a plaintiff plead a prima facie case. Hackney v. Arlington Cty. Police Dept., 145 F.3d 1324, 1998 WL 230849, at *4 (4th Cir. May 11, 1998}. Because Reardon has alleged no facts that would permit a finding that she has pled a \\direct" case, she must plead each of the elements of a prima facie case. 4 Hinton, F. 2016 WL 2621967 at *23 Appx. 637, 64 3 (4th Cir. (relying on Perry v. 2012} } . As to the Kappes, first 489 method, neither the Supreme Court nor the Fourth Circuit has adopted a bright line for how closely the adverse action must fallow the protected conduct. ten-week inference delay of Perry, "is 489 E'. App'x at 643. sufficiently causation between long the so two King v. Rumsfeld, 328 F.3d 145, 151 n.5 the second option, and the based adverse solely on 'other relevant as Perry, to events." even a weaken Id. the (quoting (4th Cir. 2003}}. As to where the time between the protected conduct action "is temporal too great proximity, to a establish plaintiff 489 F. causation must present to establish causation,' evidence 'continuing retaliatory conduct and animus' period." However, App'x at 643 such as in the intervening (relying on Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007)}. 1. Overcoming Delay Under Existing Fourth Circuit Law The Fourth explanation Circuit sufficient has to recognized overcome two the ways to weakened plead an causality inference where there is a delay between the alleged protected activity and the alleged adverse action. First, the most common "sufficient explanation" in the Fourth Circuit requires alleging "continuing retaliatory conduct and animus." Perry, 489 F. App'x 5 at 643. The conduct deemed sufficiently retaliatory serious. where plaintiff was (D. Md. of law is quite significant responsibilities, Murphy-Taylor v. 2013) case (finding ongoing animus stripped supervisory meet with clients) ; 722 existing Lettieri, 478 F.3d at 650 responsibilities, 693, under Hofmann, and 968 job ability F. Supp. to 2d (finding ongoing animus where employer failed to separate plaintiff from her harasser and issued poor performance reviews); JCC/TRJ, 2013 (finding WL ongoing Elder v. 4538777, animus DRS Techs., at *7 where (E.D. Inc., Va. employer No. Aug. 1: 13CV7 99 27, deployed 2013) civilian employee to life-threatening active combat site in Afghanistan). Second, the Fourth Circuit has also "regular acts showing animus or antagonism, reasons why the adverse action was not serve as a sufficient explanation acknowledged coupled with val id taken for that immediately" can delay between the protected action and retaliation. Hart v. Hanover Cty. Sch. Bd., No. 3:10-CV-794, 2013 WL 1867388, at *5 aff 'd, 547 F. App'x 298 (4th Cir. (E.D. Va. May 2, 2013) (relying on Lettieri, 478 F.3d at 650). In (emphasis Lettieri contacted Human Resources on December 17, 2001, to report gender discrimination by Taylor and Parkinson. Over the next two days Hausner conveyed Lettieri' s complaints to the two men. After Lettieri lodged her complaint, Taylor gave up on his plan to transfer her to New York. But the very next month (January 2002) Taylor stripped Lettieri of significant job 6 2013), added), responsibilities. He reduced her supervisory responsibilities over the sales team and took away her authority to set prices and meet directly with Sprint clients. These steps made it easier for Taylor to take the position later that Lettieri was not needed and should be terminated. Before long, in February or March 2002, Taylor and Parkinson began discussions about firing Lettieri. This was well before Equant asked managers such as Taylor to look for positions that could be eliminated. Right after Radochia took over Parkinson's role in April 2002, Taylor informed Radochia that he had "big issues with (Lettieri]" and that "her role (was] not really needed." J.A. 264. After the decision was made to terminate Lettieri in June of 2002 because her position was supposedly redundant, Taylor immediately sought approval to hire a replacement for Lettieri. These intervening events which occurred regularly after Lettieri's complaint and can reasonably be viewed as exhibiting retaliatory animus on the part of Taylor and Parkinson - are sufficient to show a causal link between Lettieri's complaint and her termination. Lettieri, pattern 478 of F.3d at antagonistic 650-51. Similarly, behavior {including rumors and a poor performance review) first convenient opportunity in Murphy-Taylor, failure to a quash and adverse action at the overcame a delay of fifty-one months between the plaintiff's protected conduct and the adverse action. Murphy-Taylor, 968 F. Supp. 2d at 721-22. 3 3 In Murphy-Taylor, plaintiff's employer (1) demonstrated ongoing animus by refusing to quash rumors about plaintiff, refusing to prevent contact between plaintiff and her alleged harasser, and gave plaintiff a poor performance review; and (2) acted at the 7 In other words, under the second Fourth Circuit approach, an employer steadily working toward effecting an adverse action and subsequently opportunity, taking combined that with action at articulated the first continuing convenient animus, meet the plausibility standard for pleading causality, can at least at the motion to dismiss stage. 2. Overcoming Delay Using the "Valid Reason" Approach Other courts of appeals have adopted a rule that goes one seep further, pleading that convenient and have adverse found plausible action opportunity was without any retaliation delayed until accompanying continuing animus. Kachmar v. SunGard Data Sys., 173, 1997) the 178 {3d Cir. adverse absence of employment immediacy upon the first evidence Inc., a of 109 F.3d ("When there may be valid reasons why action between was not the taken cause disprove causation."); 4 see also Porter v. and immediately, the effect not does California Dep' t of earliest convenient opportunity by terminating plaintiff a single day after plaintiff's harasser - against whom plaintiff's employer had taken no disciplinary action pled guilty to sexual assault against plaintiff. Id. at 721-22. 4 The Third Circuit employs the--same test for prima facie retaliation as does the Fourth. Kachmar, 109 F. 3d at 177. Like the Fourth Circuit, the Third Circuit also permits circumstantial evidence of a pattern of antagonism to overcome a delay between protected activity and adverse action. Farrell v. Planters Lifesavers Co., 206 F. 3d 271, 280 ( 3d Cir. 2000) . This strongly suggests that the "pat tern of antagonism" or "valid reason" approaches are complimentary, not conflicting, ways of overcoming a delay, and that employing the "valid 8 Corr., 419 F. 3d 885, 895 (9th Cir. Richmond v. Oklahoma Univ. Cir. 1998) Bd. 2005) (relying on Kachmar); of Regents, 162 F.3d 1174 {10th {relying on Kachmar); Dixon v. Gonzales, 481 F.3d 324 (6th Cir. 2007) (noting Kachmar but finding no valid reason why the adverse employment action was not taken immediately). In person Kachmar, in-house plaintiff worked as counsel team. an Kachmar, attorney on a 109 F.3d at three- 175, 178. Plaintiff complained to her supervisor about her own pay and the pay and treatment of others at the company. Id. at 175-76. Four months after her fin al instance of protected activity which plaintiff's "strained" - motion dismiss to relationship with plaintiff was terminated. plaintiff's Title her Id. VII at during supervisor 176, 17 8. retaliation was In a claim, defendant argued that "even a four month gap would be too long to allow an inference of causation." Id. at 178. The Third Circuit observed that [i]t is important to emphasize that it is causation, not temporal proximity itself, that is an element of plaintiff's prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific. When there may be valid reasons why the adverse employment action was not taken immediately, the reason" approach would add to, not conflict Fourth Circuit jurisprudence on retaliation. 9 with, existing absence of immediacy between the cause and effect does not disprove causation. SunGard may have recognize that termination of Kachmar immediately after her January 15, 1993 meeting with [her supervisor) could have resulted in the disruption of the small, three-attorney in-house counsel's off ice. After all, Kachmar was senior inhouse counsel, not one of many interchangeable employees on an assembly line. We do not know whether she was involved in long-term negotiations or litigation that could have deterred SunGard from terminating her immediately. Id. 5 The Third Circuit's reasoning is persuasive, and the "valid reason" approach taken there as a means to overcome the effect of an extended contradictory to, delay the is complimentary of, rather than Fourth Circuit's decisions on overcoming delay. First, under the Third Circuit's "valid reason" approach, the Fourth Circuit's predominant the Fourth Lettieri Circuit's ongoing animus blended approach, 5 approach, the and plaintiff The Court notes that the Kachmar court's "there could have been ... " approach, requiring the defendant to show improbability rather than requiring the plaintiff to allege plausibility, is outmoded in the wake of Twombly and Igbal. See, e.g., Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). In the present case, however, Reardon affirmatively pleads that she was "involved in ... litigation that could have deterred [OAG) from terminating her immediately," particularly pointing to two cases in which she was lead counsel. Thus, Reardon has pled facts (her role as lead counsel on two ongoing trials) from which the Court may reasonably infer a "valid reason[] why the adverse employment action was not taken immediately." Reardon accordingly avoids any issues arising from the shift in pleading standards after the Third Circuit decided Kachmar. 10 pleads intervening facts that bridge the gap between the distant protected act and the delayed adverse action, permitting the district court to make a reasonable inference in the plaintiff's favor that the protected act and adverse action were related. The consistency of these three Circuit's overcome the animating principle underlying each of analytical valid a constructs reason lengthy approach, delay that teaches if that properly would the Third pleaded, otherwise may foreclose a permits an plausible pleading of causality. 6 Second, inference convenient with the the of "valid causation opportunity reason" where to Fourth Circuit approach, an take employer adverse which acts at the action, is consistent approach that permits an inference of causation where an employer takes adverse action at possible opportunity. (4th Cir. 2004) failure-to-hire Price v. Thompson, (assuming, context, without the first 380 F.3d 209, 213 deciding, the employer's first "that in the knowledge coupled with an adverse action taken at the first opportunity satisfies the causal connection element of the prima f acie case") ; Johnson v. Scott Clark Honda, *4 No. (W.D.N.C. Apr. 25, 3:13-CV-485-RJC-DCK, 2014), aff'd, 6 2014 WL 1654128, at 584 F. App'x. 180 (4th Cir. Of course, there must exist a factual predicate that will support such a pleading. Without that factual base, the pleading runs the risk of running afoul of Fed. R. Civ. P. 11. 11 2014) (applying \\first opportunity" to employee's request to become a full time employee) . Because the "valid reason" consistent adopts it approach, with as may existing an approach Fourth approach overcome Circuit which, an persuasive and is case like extended activity and adverse action, is law, the delay the ongoing between thus re-establishing a Court animus protected reasonable probability of causation, at the motion to dismiss stage. B. Application to Reardon's Claims According activity: (1) February 2015"; 2015." to on the FAC, November and (3) {FAC 'Hc:ll 41-44, 3, 2014; instance of eight or alleged (2) Pl.'s Br. 56; \\on in or protected about early in Opp. to Def.'s Mtn. ("Pl.'s Opp."), 11). Reardon was notified of her termination on June 15, approximately engaged "on or about late March or early April 50, to Dismiss, ECF No. 24 Plaintiff ten 2015. weeks protected (FAC 'II elapsed 63). Accordingly, between activity and the final Reardon's termination. This places Reardon in the category of cases where the \'separation between the two events is sufficiently long so as to weaken requiring significantly [plaintiff] to the present inference additional retaliation." Perry, 489 F. App'x at 643. 12 of causation, evidence 1 of Reardon that instances allege(d] antagonism, did argues not coupled she of in retaliatory with immediately has, valid animus reasons terminate "sufficiently fact, why [Reardon' s] or intervening (Herring's office] employment." (Pl.' s Opp. 12) . 1. Reardon Has Not Pled Ongoing Animus In support of her assertion of ongoing retaliatory animus, Reardon points to the (Pl.'s Opp. 13). conduct of a supervisor, Reardon alleges that: {1) Linda Bryant. "[a]fter [Reardon's] unequal pay complaint to Ms. Bryant in early February 2015, Ms. Bryant rarely Plaintiff", and spoke (2) to Plaintiff "[s]hortly after and actively Plaintiff's avoided unequal pay complaint to Ms. Bryant in early February 2015, in mid-February 2015," office Bryant window" assigned a "desirable to another attorney, exterior despite the fact that with a ''[Reardon] was next in line for consideration for such an office"; and (3) Bryant did not congratulate Reardon or "send [Reardon's] section the customary announcing the served as email favorable congratulating verdict" of a lead attorney. ( FAC '!I'll 4 7, [Reardon] trial 54, or even in which Reardon 51-53, 56-58; Pl. 1 s Opp. 13). The conduct that Reardon identifies does not rise to the level required for ongoing animus. The conduct that suffices to establish "ongoing animus" in existing 13 case law is much more severe than the conduct that Reardon pleads here. 478 F.3d at 650; Murphy-Taylor, 2013 WL 4 538777, at *7; Hart, 968 F. Supp. Lettieri, 2d at 722; 2013 WL 18 67 388, at *5 Elder {noting Third Circuit case finding ongoing animus "based on a pattern of harassment, discipline for provoke the plaintiff") Transp. Auth., 1993)). Compared Reardon' s Red sufficient to to permit matters, and attempts to {relying on Robinson v. Se. Pennsylvania Arrow allegations minor the Div., 982 conduct F.2d 892, alleged 895 in (3d those Cir. cases, plead insignificant conduct 7 that is not a Reardon was reasonable inference that terminated in retaliation for her protected behavior. 2. Reardon Has Pled A Valid Reason For Delayed Adverse Action In support of her assertion of valid reasons why Herring's office did not immediately Reardon alleges that, terminate Reardon's employment, from November 2014 through May 2015, 7 she On that point, it is useful to remember that, in determining what behavior constitutes harassment, the Supreme Court observed that federal labor laws are not intended to create "a general civility code for the American workplace." Oncale v. Sundowner Off shore Servs., Inc., 523 U.S. 7 5 ( 1998) ; see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (noting, in context of determining whether an action is materially adverse, that "(a] supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight") . 14 served as lead prosecutions, attorney on separate two "extensive" and that terminating her before the conclusion of those matters "would have jeopardized the trial given the large amount of trial preparation performed by" Reardon. (FAC '.!['.![ 47- 50, 54, 56-58, 101-03). The Third Circuit contemplated exactly such a circumstance in Kachmar and concluded that this situation provided a valid reason for delay between protected activity and adverse action, so as to re-establish the presumption of a causal link at the motion to dismiss stage. Kachmar, 109 F.3d at 178 have of recognized her January 15, that termination 1993 meeting with Kachmar ("SunGard may immediately [her supervisor] after could have resulted in the disruption of the small, three-attorney in-house counsel's office .... We do not know whether she was involved in litigation that could have deterred SunGard from terminating her immediately.") . 8 employer, having It invested is logical significant to infer time in that one a legal attorney's preparation for a matter, might well delay taking adverse action against that attorney until the termination of the matter, so as to avoid the need to squander resources bringing a replacement up to speed. 8 Again, although Kachmar' s "we do not know" approach has been supplanted by Twombly and Iqbal, Reardon has pled specific facts such that the Court does know - accepting Riordan's allegations as true - that she was involved in litigation at the time she engaged in protected activity. 15 In this drawing case, Reardon's favor, it Reardon's protected is all reasonable plausible activities and that the OAG's inferences delay adverse in between action is attributable to OAG's desire to avoid disrupting the trials that Reardon was prosecuting in late 2014 and early 2015. By pleading this valid inference reason of for delay, causation Reardon has re-established which permits Count II to an survive Herring's Fed. R. Civ. P. 12{b} {6} motion to dismiss. CONCLUSION For the reasons stated above, Defendant's MOTION TO DISMISS COUNT II OF PLAINTIFF'S AMENDED COMPLAINT (ECF No. 21} will be denied. It is further ordered that the facts and legal contentions are adequately presented in the materials before the Court and oral argument Defendant's would MOTION TO not aid DISMISS the COUNT decisional II OF process PLAINTIFF'S AMENDED COMPLAINT (ECF No. 21}. It is so ORDERED. Isl Robert E. l?ayne Senior United States District Judge Richmond, Virginia Date: August 2016 16 on
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