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Morse v. Virginia Department of Corrections

United States District Court, E.D. Virginia, Richmond Division

March 31, 2014



ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on DEFENDANTS' MOTION TO DISMISS (Docket No. 11) filed by the defendants, Virginia Department of Corrections, Harold Clarke, N.H. Cookie Scott, Paul Broughton, Rufus Fleming, Gary Bass, Wendy S. Hobbs, Henry Diggs, Jr., Marie Vargo, William Breed, Mack A. Bailey and Letha Hite (hereinafter "DOC" and "DOC Defendants").

Defendant Claudia Farr also filed a MOTION TO DISMISS (Docket No. 13) wherein she joined the DOC Defendants' motion and adopted the arguments therein "by reference as if set forth in their entirety." For the reasons set forth herein, DOC DEFENDANTS' MOTION TO DISMISS (Docket No. 11) and Farr's MOTION TO DISMISS (Docket No. 13) will be granted.


Roger Lee Morse has filed a 140-page Complaint (with 189 pages of exhibits) that the DOC Defendants have accurately characterized as a "shotgun pleading." On the first page of the Complaint, Morse has included a laundry list of eighteen federal laws that he seems to believe were violated by the DOC Defendants. Compl. at 1-2. These alleged violations and the facts included in the Complaint span nearly all of Morse's time as an employee of the DOC, and the Complaint names as defendants nearly every supervisor with whom Morse worked. There are a total of twenty-two (22) named defendants, some of whom no longer work for the DOC However, at the heart of the Complaint is Morse's contention that he suffered employment discrimination at the hands of the DOC and certain of its employees. Morse also presents several non-employment discrimination violations that are addressed at theend of this Memorandum Opinion.

Taken in the light most favorable to Morse, the facts are set forth below. Morse began working for the DOC on June 26, 1986. In April 1995, Morse lost his son to a homicide. Because of the trauma and emotional stress of this loss, Morse claims that he was "forced to resign" on August 3, 1995 because he and his employer could not agree to an appropriate extension of leave time. According to Morse, the "forced resignation" was evidence of discriminatory treatment. Morse claims that other employees who requested additional leave were allowed more time off than he was offered and were not forced to resign.

In December of 1997, Morse returned to work for the DOC At some point beginning in late December 1997 and continuing through January 1998, Morse was involved in a disagreement with his employer and was fired following an incident in which Morse's supervisor accused him of calling another supervisor a "bitch." That incident occurred in the probationary period during which the DOC could terminate Morse for failure to maintain satisfactory job performance. Morse's employment was terminated because of that incident.

On April 28, 2000, Morse filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that the DOC s decision to terminate him in 1998 was a violation of the law. On February 26, 2001, the EEOC issued Morse a "right to sue" letter. PL's Ex. 1, ECF No. 3-1. On May 23, 2001 (approximately three and one half years after being fired in January 1998, and 86 days after receiving his EEOC letter), Morse filed an action in this Court. See Civil Action No. 3:01cv337 (hereinafter "Morse I").[1] The Complaint in Morse I alleged all of the foregoing facts as grounds for Morse's claims for discrimination, retaliation, hostile work environment, and defamation. On January 28, 2002, Morse's claims regarding his 1998 termination, hostile work environment, and his claims under the Virginia Human Rights Act were dismissed for failure to exhaust administrative remedies and for being untimely. See ECF No. 12-1, Def.'s Ex. 1 ("January 28 Order").

On the day set for trial, Morse moved for a voluntary dismissal of the remaining claims. See ECF No. 12-2, Def.'s Ex. 2. That motion was granted, subject to two conditions to any refiling at a later date: (1) that Morse not allege the same claims that had been dismissed by the January 28 Order; and (2) that Morse obtain counsel before re-filing.

On March 3, 2003, Morse was rehired by the DOC According to Morse, he was supposed to have been reinstated instead of being hired as a new employee. As a result of his classification as a new hire, he was assigned to a lower rate of pay. Morse noticed the alleged discrepancy in his pay as a new hire in April 2003. In August 2003, Morse's military unit was mobilized and he was sent to Iraq, where he served from August 2003 until September 2010 when he returned to work at DOC full time.[2] While he was away on active military duty, Morse claims that he did not receive the bonuses, raises, and other pay benefits to which he was entitled under the Uniformed Services Employment and Reemployment Act ("USERRA"). Id . However, his own filings show that he did, in fact, receive raises while serving in the military. (See PL's Ex. C at 18, outlining salary increases Morse received between 2003 and 2010).

Next, in September 2011, Morse alleges that he was discriminated against when he was not selected to interview for a job promotion for which he applied. See PL's Ex. A, ECF No. 3-1 at 6. However, correspondence between Morse and the employee grievance committee (which was attached as exhibits to the Complaint) shows that he was not selected for an interview because he did not fully complete his application for employment; he left substantial portions of the application blank. See PL's Ex. C, ECF No. 3-3 at 29. Morse essentially claims, in conclusory form, that DOCs policy of rejecting incomplete applications is discriminatory, but his Complaint identifies no examples of other similarly situated people who were allowed to interview for a position after submitting an incomplete application. Additionally, Morse did not file an internal DOC grievance about the incident within the 30-day time limit. Therefore, his internal complaint about his non-selection for an interview was invalid under DOC s grievance procedure, and the grievance process ended.

Following that alleged discrimination in September of 2011, Morse filed a new EEOC charge. That charge was resolved on October 25, 2011, and a notice of a right to sue was mailed to Morse on that day. The Court presumes that Morse received that letter on October 28, 2011.[3] Morse does not suggest otherwise.

Morse filed this action on July 16, 2013. Presuming that Morse received his right to sue letter on October 28, 2011, the date of filing is 627 days after the receipt of the right to sue letter, and approximately 684 days after the alleged discrimination (counting from September 1, 2011). The Complaint posits no reason for the delay in filing.

The DOC has moved to dismiss the case on the following grounds: (1) the Court's lack of subject matter jurisdiction under Fed.R.Civ.P. 12 (b) (1); (2) Morse's failure to set forth a clear and succinct pleading per Fed.R.Civ.P. 8 (a) and 10 (b); (3) Morse's failure to meet the pleading requirements laid out in Twombly and Iqbal;[4] (4) res judicata ; (5) collateral estoppel; (6) Morse's failure to comply with various statutes of limitation; (7) Morse's failure to file suit within 90 days of the issuance of an EEOC right to sue notice; (8) Morse's failure to comply with the January 28 Order granting his request for voluntary dismissal; (9) the qualified immunity of the DOC Defendants (as applicable to all non-Title VII claims); and (10) the Eleventh Amendment's grant of sovereign immunity to agencies of the Commonwealth. Most (if not all) ...

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