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Atkins v. Virginia Department of Transportation

United States District Court, Fourth Circuit

December 19, 2013


Thomas E. Strelka, Strickland, Diviney & Strelka, Roanoke, Virginia, for Plaintiff.

Sydney E. Rab and Katherine M. DeCoster, Assistant Attorneys General, Office of the Attorney General of Virginia, Richmond and Abingdon, Virginia, for Defendant.


JAMES P. JONES, District Judge.

Deborah E. Atkins has sued her former employer, the Virginia Department of Transportation ("VDOT"), alleging that she was constructively discharged in retaliation for having engaged in activity protected under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2012). VDOT now moves to dismiss the Complaint for failure to state a claim upon which relief may be granted or, at the least, to strike the prayers for liquidated and punitive damages. For the following reasons, I will deny the Motion to Dismiss, but I will strike the prayers for liquidated and punitive damages.


In her Complaint, Atkins alleges the following facts, which, under familiar principles, I must accept as true for the purpose of the present motion. On July 23, 2010, Billy Joe Wolfe, an African-American and the Acting Superintendent for VDOT's Moccasin Gap Headquarters, "wrote a concise description of the hostile and discriminatory work environment he was experiencing" and forwarded it to Assistant District Administrator Mike Branham, Commissioner Greg Whirley, and Human Resources and Acting District Administrator Ken Brittle, in addition to the Equal Employment Opportunity Commission ("EEOC"). (Compl. ¶ 19, ECF No. 1.) Wolfe also filed an internal complaint with VDOT District Human Resources Manager Connie Hope. The plaintiff, Atkins, in her capacity as a Civil Rights Manager for VDOT's Bristol District, received this complaint four days later, and on August 10, 2010, she formally accepted it for investigation. At Atkins' request, William Hawkins, a VDOT Investigator in Hampton Roads, was assigned to assist in the investigation.

Atkins alleges she was pressured and intimidated by Branham, Brittle, and Hope in an attempt to hinder the investigation. She claims she was "subjected to daily hostility on the part of her co-workers and was ostracized by her co-workers." (Compl. ¶ 27, ECF No. 1.) In the course of the investigation, Atkins discovered that Wolfe was the lowest paid Acting Superintendent, and indeed was paid less than some of his subordinates. Although ultimately successful in her efforts to increase Wolfe's compensation, she encountered significant resistance, particularly from Hope.

The Draft Investigative Report was prepared in November 2010, and on November 29, Brittle reproached Atkins for her findings. Later that day, Hope accused Atkins of "being a snitch, " and Brittle suggested Atkins revise the report or "start polishing [her] resume." (Compl. ¶ 45, ECF No. 1 (internal quotation marks omitted).) On December 1, 2010, Brittle prepared his own version of the report and pressured Atkins to utilize it in place of her findings. Nonetheless, Atkins did not change the report, and on December 2, 2010, the following findings were approved for distribution:

The evidence supports that Mr. Kilgore and Mr. Christian treated Mr. Wolfe in an unfair and disrespectful manner. Their actions were unprofessional and inappropriate and had a corrosive and disruptive effect on the work environment. The weight of the evidence suggests that Mr. Kilgore's and Mr. Christian's behavior towards Mr. Wolfe was motivated by their desire to have another employee in that role. The evidence does not show that Mr. Kilgore's and Mr. Christian's actions were racially motivated.

(Def.'s Br. Supp. Mot. Dismiss, Ex. C, 6, ECF No. 3-1.)[1] The report further concluded there was insufficient evidence to support claims of a racially offensive and hostile work environment, of pre-selection, or of retaliation.

Atkins avers that she "was targeted and ultimately unfairly constructively discharged by VDOT in retaliation for finding merit in Mr. Wolfe's complaints." (Compl. ¶ 50, ECF No. 1.) Atkins reports her car was repeatedly vandalized while parked in the VDOT employee parking lot, with the first instance on January 21, 2011. That same month, Mike Russell was appointed the Bristol District Administrator, and in his first meeting with Atkins, he scolded her "for making the Bristol District look bad' and like a bunch of racists.'" (Compl. ¶ 55, ECF No. 1.) On April 22, 2011, Brittle sped toward her in his car, nearly striking her. On October 24, 2011, Atkins was "unfairly disciplined" for "falsification of a state record" and "unsatisfactory performance." (Compl. ¶ 64, ECF No. 1 (internal quotations marks omitted).) More specifically, she was accused of having a previous romantic relationship with Kilgore that biased the findings of the Wolfe investigation. As a result, Atkins received a Group III Written Notice, with three days pre-disciplinary leave and five days suspension. After engaging in the grievance procedure to contest the disciplinary action, the Grievance Hearing Officer determined that Atkins was the target of a "witch hunt with a united group of Agency personnel and witnesses out to penalize and discredit the Grievant." (Compl . ¶ 70, ECF No. 1 (internal quotation marks omitted).) The Hearing Officer recommended that her Written Notice be withdrawn and that she receive backpay, but these recommendations were ignored. She alleges her constructive discharge occurred on January 6, 2012.


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). In ruling on such a motion, the court must regard as true all of the factual allegations contained in the complaint, Erickson v. Pardus , 551 U.S. 89, 94 (2007), and must view those facts in the light most favorable to the plaintiff, Christopher v. Harbury , 536 U.S. 403, 406 (2002). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes , 416 U.S. 232, 236 (1974).

To establish a prima facie case of retaliation, the plaintiff must show that: (1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) there was a causal connection between the protected activity and the adverse action. Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997). VDOT argues that Atkins did not ...

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