United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, Chief District Judge.
In this employment discrimination action, the Commonwealth of Virginia Department of Juvenile Justice ("DJJ"), Rodney Hubbard, and Kimberly Doyle (collectively referred to as the "DJJ defendants") have moved for partial dismissal of the second amended complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion will be granted in part and denied in part.
Plaintiff Amina Al-Habashy is an African-American woman of the Muslim faith, who is over the age of 40. She was employed by the City of Roanoke from 1996 until September 2012.
At all times relevant to the instant action, Al-Habashy worked as a program coordinator for the City. In that position, Al-Habashy was responsible for "manag[ing] and coordinat[ing] a community service program for youth subject to the jurisdiction of the City of Roanoke Juvenile & Domestic Relations District Court and/or the 23A Court Service Unit" of the DJJ. 2d Am. Compl. ¶ 21, Docket No. 38.
Although Al-Habashy's salary was paid by the City, she contends that the DJJ exercised sufficient control over her to be considered her "joint employer." Id . ¶ 82. Employees of the DJJ directly supervised her work, evaluated her job performance, and had the authority to discipline her for misconduct. Two of Al-Habashy's DJJ supervisors were defendants Rodney Hubbard and Kimberly Doyle.
In 2009, Al-Habashy applied for a probation supervisor position within the DJJ's 23rd Court Service Unit. Al-Habashy interviewed for the position, but she did not advance beyond the initial interview. Al-Habashy "complained that her failure to progress beyond the initial interview stage was due to discrimination based upon her age, race[, ] and religion." Id . ¶ 38. "Her complaints consisted of internal complaints to DJJ, ... a Charge of Discrimination [filed] with the Equal Employment Opportunity Commission ("EEOC") in the summer of 2009 and, ultimately, [a complaint filed] in the United States District Court for the Western District of Virginia at Roanoke." Id . 39. The federal action remained pending from June 29, 2011 until February 28, 2012, when the DJJ was awarded summary judgment. See Al-Habashy v. Dep't of Juvenile Justice, No. 7:11CV00306, 2012 U.S. Dist. LEXIS 24869 (W.D. Va. Feb. 28, 2012) (Wilson, J.).
Al-Habashy claims that DJJ officials, including Hubbard, subsequently took adverse employment actions against her in retaliation for her complaints of discrimination. "Plaintiff timely filed a Charge of Discrimination with the EEOC about this retaliation." 2d Am. Compl. ¶ 45. She then filed a second action in this court, asserting a claim for retaliation against the DJJ.
The second action was voluntarily dismissed without prejudice on December 20, 2012. See Al-Habashy v. Dep't of Juvenile Justice, No. 7:12CV00100 (W.D. Va. Dec. 20, 2012) (Wilson, J.).
In late 2011, Al-Habashy applied for another probation supervisor position, which became vacant when one of her supervisors retired from the DJJ. Al-Habashy interviewed for the supervisory position in November 2011. Hubbard served on the interview panel and selected the other panel members. None of the panel members were Muslim.
Al-Habashy alleges that the panel members became aware of her religious beliefs during the interview. She was dressed in traditional Muslim clothing, which left only her face and hands uncovered. Additionally, Al-Habashy declined to shake hands with a male panel member for religious reasons.
Al-Habashy did not proceed in the selection process beyond the initial interview. She alleges that she was the only applicant for the position with supervisory experience in a juvenile court setting, and that Kimberly Doyle, who was ultimately selected, "is a Caucasian female more than 12 years younger than Plaintiff, who does not practice the Muslim religion, who has fewer years of relevant service than Plaintiff and who, unlike Plaintiff, never previously held a position where she exercised supervision over others." 2d Am. Compl. ¶ 59.
Al-Habashy then filed another charge of discrimination with the EEOC "alleging discrimination on account of age, race, and religion as a result of not being hired for the supervisor position." Id . ¶ 63. She received a right to sue letter from the EEOC for that charge.
Defendant Doyle became Al-Habashy's supervisor. Al-Habashy alleges that Doyle "immediately... began to harass, retaliate[, ] and discriminate against [her] by, among other behaviors, refusing training opportunities[, ] hindering Plaintiff from obtaining reimbursement for expenses incurred in her employment, being overly and disparately critical of her job performance, disciplining her for actions that other similarly situated persons who were not Muslim and/or black were not disciplined, refusing to personally interact with Plaintiff, and ignoring Plaintiff in public areas of the office." Id . ¶ 67.
Al-Habashy sought medical treatment to assist her in dealing with "stress" and "emotional distress." Id . 70. "Plaintiff's medical providers opined that Plaintiff's stress, emotional distress[, ] and physical condition constituted a serious medical condition, and recommended that she take time off from work..." Id . 1171.
In July 2012, Al-Habashy notified the City of Roanoke's Human Resources Department that she needed to take time off from work. Al-Habashy claims that although the City customarily permitted employees to take time off regardless of whether they had leave available, "Roanoke did not afford Plaintiff this custom and practice but instead... terminated her employment." Id . ¶ 74. Al-Habashy alleges that the DJJ, Hubbard, Doyle, and defendant James O'Hare "participated in the decision to terminate [her], and encouraged the City to terminate her." Id . ¶ 78.
Al-Habashy filed additional charges of discrimination against the City of Roanoke and the DJJ. In those charges, she "alleged discrimination on account of race, religion, disability[, ] and age, " as well as "retaliation for complaining about discrimination." Id . ¶ 81. On September 27, 2013, after receiving right to sue letters for both charges, Al-Habashy filed the instant action against the DJJ, the City of Roanoke, Hubbard, Doyle, and O'Hare, a City employee.
On March 12, 2014, Al-Habashy was granted leave to file an amended complaint. All five defendants then moved to dismiss portions of the amended complaint. The court held a hearing on the motions on May 19, 2014. Following the hearing, the court entered an order permitting Al-Habashy to file a second amended complaint.
Al-Habashy filed a second amended complaint on June 16, 2014, in which she asserts the following claims: retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") against the DJJ and the City of Roanoke (Count I); discrimination on account of race and religion in violation of Title VII against the DJJ (Count II); discrimination on account of age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") against the DJJ (Count III); harassment on account of race and religion in violation of Title VII against the DJJ and the City of Roanoke (Count IV); discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA") against the City of Roanoke (Count V); violations of her First Amendment right to free speech and her Fourteenth Amendment right to due process pursuant to 42 U.S.C. § 1983 against Hubbard, Doyle, and O'Hare (Count VI); race discrimination in violation of 42 U.S.C. §§ 1981 and 1983 against the DJJ, the City of Roanoke, Hubbard, Doyle, and O'Hare (Count VII); violations of the Fair Labor Standards Act of 1938 ("FLSA") against the City of Roanoke (Count VIII); and intentional interference with employment against the DJJ, Hubbard, and Doyle (Count IX).
The DJJ, Hubbard, and Doyle have moved for partial dismissal of the second amended complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The motion has been fully briefed and is ripe for review.
Standards of Review
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to move for dismissal of an action for lack of subject matter jurisdiction. The plaintiff bears the burden of proving that subject matter jurisdiction exists. Evans v. B. F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999). Dismissal for lack of subject matter jurisdiction is appropriate "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id . (internal citation and quotation marks omitted). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court should "regard ...