United States District Court, W.D. Virginia, Lynchburg Division
NORMAN K. MOON, District Judge.
Plaintiff Loraine Franklin, Jr. ("Plaintiff, " or "Franklin") filed this action on October 10, 2014, alleging, inter alia, race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). This matter is now before me on a Motion to Dismiss filed by Defendant Flowserve FSD Corporation ("Defendant, " or "Flowserve"), in which it seeks to dismiss Plaintiff's Title VII race discrimination claim on the grounds that it is time barred. For the reasons stated herein, Defendant's Motion to Dismiss is DENIED.
A. Statement of Alleged Facts
Loraine Franklin is an African-American male who formerly worked as a material handler with Flowserve. As a Flowserve employee, Franklin was involved in a workplace altercation in which he was assaulted by another employee. Specifically, on September 16, 2011, a male coworker "struck Franklin in his hip area" while he was using the bathroom. Franklin could not identify who attacked him at the time, and so he sought out other employees who witnessed the altercation for further information. One of those employees identified coworker Tony Evans as Franklin's assailant. Upon learning this information, Franklin confronted and physically attacked Evans on Flowserve property.
Flowserve followed up with an investigation of the event. As a component of the investigation, Flowserve conducted an interview with Franklin in which he admitted to attacking Evans. Because Franklin's conduct conflicted with Flowserve's policy against violence in the workplace, Flowserve terminated Franklin in late September of 2011. While Flowserve terminated Franklin's employment, it declined to do so under similar circumstances involving a white employee. On April 24, 2013, a white male engaged in a physical altercation with another coworker. Though this employee also violated Flowserve's policy against violence in the workplace, he was not terminated. Since his termination, Franklin has submitted several job applications to Flowserve, all of which have been rejected.
B. Procedural Background
In November of 2011, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging race discrimination in his termination. On July 24, 2012, the EEOC issued a Dismissal and Notice of Rights ("Notice") concerning the charge, giving Franklin 90 days to pursue his claim. Despite receiving the Notice, Franklin failed to pursue his Title VII claim within the prescribed time period. Thereafter, on November 12, 2013, Franklin filed a second charge of discrimination with the EEOC. In his second charge, Franklin claims Flowserve refused to rehire him on the basis of his race in violation of Title VII. On July 10, 2014, the EEOC issued Franklin a Notice of Right to Sue with respect to his second charge. Franklin subsequently filed this complaint on October 10, 2014.
II. LEGAL STANDARD
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint... [I]t does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A court considering dismissal under Rule 12(b)(6) must take the facts in the light most favorable to the plaintiff. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991). Courts are not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather, a complaint must contain enough factual allegations to "state a claim for relief that is plausible on its face." Twombly, 550 U.S. at 570. In evaluating "plausibility, " the court may not rely on mere "labels and conclusions" or a plaintiff's "formulaic recitation of a cause of the elements of a cause of action." Id. at 555. Instead, the factual allegations must be enough to raise "a right to relief above the speculative level." Id. Thus, a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
In order to assert a timely violation of Title VII, plaintiffs in Virginia must first file a charge with the EEOC within 300 days after the alleged unlawful practice occurred. See 42 U.S.C. § 2000e-5(e)(1); Edwards v. Murphy-Brown, LLC, 760 F.Supp.2d 607, 619 (E.D. Va. 2011). If the EEOC decides not to pursue the charge itself, the EEOC delivers the plaintiff a "right-to-sue letter, " which must be acted upon within 90 days of the letter's receipt. See 42 U.S.C. § 2000e-5(f)(1) ("If a charge filed with the Commission... is dismissed by the Commission... the Commission... shall so notify the person aggrieved and within  days after the giving of such notice a civil action may be brought against the respondent named in the charge...."). Thus, to avoid dismissal, Franklin's complaint must show the following: (1) that he filed his charge of discrimination within 300 days of an alleged unlawful employment practice, and (2) that he filed his complaint within 90 days of receiving his right-to-sue letter.
With respect to the first requirement, the United States Supreme Court's decision in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002) is instructive. In Morgan, the Court held that an "unlawful employment practice" occurs on the day in which an employer engages in a "discrete act" of discrimination. Id. at 111. Discrete acts include "acts such as termination, failure to promote, denial of transfer, or refusal to hire...." Id. at 114. With respect to an employer's refusal to rehire an employee, the United States Court of Appeals for the Fourth Circuit recognizes that such conduct constitutes a discrete act where "new elements of unfairness, not existing at the time of the original violation, attached to denial of reemployment." See E.E.O.C v. City of Norfolk Police Dep't., 45 F.3d 80, 84 (4th Cir. 1995) (citing India v. United Air Lines, Inc., 565 F.2d 554, 561-62 (9th Cir. 1977)); see also Lawson v. Burlington Indus. Inc., 683 F.2d 862, 863-64 (4th Cir. 1982) ("[A] layoff from employment constitutes a completed act at the time it occurred, and... an employer's failure to recall or rehire... constitutes a separate and completed act by the defendant.").
Here, Flowserve terminated Franklin based on its policy against violence in the workplace. Subsequent to his termination, Franklin alleges a white Flowserve employee engaged in the same conduct that produced his termination. Despite engaging in similar conduct, Flowserve refused to terminate the white employee. Franklin then submitted job applications for several positions with Flowserve, all of which were rejected. Under such circumstances, "new elements of unfairness" surround Defendant's refusal to rehire, and I will therefore treat its refusal to rehire Franklin as a "discrete act" of discrimination. Id. at 84; see also India, 565 F.2d at 557-58 (recognizing a failure to rehire qualifies as a discrete act of discrimination where, subsequent to the relevant employee's termination, there is a discriminatory application of the "policy that produced the initial firing"). Thus, Franklin had to file his charge within 300 days of the date on which ...