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Willis v. City of Virginia Beach

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

March 6, 2015

CHRISTOPHER T. WILLIS, et al., Plaintiffs,

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For Christopher T. Willis, Thomas C. Shattuck, Jeffrey E. Wilkerson, Plaintiffs: Michael F. Imprevento, LEAD ATTORNEY, Breit Drescher Imprevento & Walker, Virginia Beach, VA.

For City of Virginia Beach, Virginia and its Police Department, James A. Cervera, Individually and in his capacity as Chief of Police for the Virginia Beach Police Department, Defendants: Michael Angelo Beverly, LEAD ATTORNEY, Dannielle Carole Hall-McIvor, City of Virgina Beach, City Attorney's Office, Virginia Beach, VA; Christopher Scott Boynton, Mark Douglas Stiles, Office of the City Attorney - Virginia Beach, Virginia Beach, VA.

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Rebecca Beach Smith, Chief United States District Judge.

This matter comes before the court on the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Motion" ) and accompanying Memorandum in Support, filed by the City of Virginia Beach (the " City" ) and Virginia Beach Chief of Police James A. Cervera (" Cervera" ) (collectively, the " Defendants" ). ECF Nos. 2, 10. The Plaintiffs -- Christopher T. Willis (" Willis" ), Thomas C. Shattuck (" Shattuck" ), and Jeffery E. Wilkerson (" Wilkerson" ) -- filed their Memorandum in Opposition on January 27, 2015, ECF No. 11, and the Defendants filed their Rebuttal on February 2, 2015. ECF No. 12. This matter has been fully briefed and is ripe for review.


Because this case arises from a motion to dismiss under Rule 12(b)(6), the facts as alleged in the Complaint are assumed to be true and viewed in the light most favorable

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to the Plaintiffs.[1] In essence, the Plaintiffs allege that they were wrongfully disciplined by their employers, the Defendants, in connection with their positions as supervisors on the Virginia Beach Police Department's (" VBPD" ) SWAT Team.

The Plaintiffs are veteran VBPD officers and were, at all ¶ ¶ 1-4. The SWAT Team is a " specialized tactical unit that is used times relevant herein, members of the VBPD SWAT Team. Compl. when there is a high probability of a life threatening situation extensive training " in nuclear, biological and chemical or an armed encounter." Id. ¶ 9. SWAT Team members receive environments, explosive breaching threat assessment as well as terrorist bombings and other areas of tactical response." Id. ¶ 10.

Before becoming a full SWAT Team member, all VBPD officers selected to join the SWAT Team must first undergo a probationary period involving rigorous, specialized training. Id. ¶ 18. Nicole Kosmas (" Kosmas" ), a female VBPD officer, was chosen for a position with the SWAT Team in January 2009. Id. ¶ 16.[2] The Plaintiffs served as Kosmas' supervisors at various times during her tenure on the SWAT Team, both during her probationary period and after she qualified as a full member. Id. ¶ 17.

The Plaintiffs contend that " [f]rom the beginning of her assignment on the SWAT Team, Kosmas consistently failed to meet the requirements of the position." Id. ¶ 20. The Complaint details Kosmas' alleged shortcomings at length, see id. ¶ ¶ 21-48, but in summary, the Plaintiffs claim that from the moment Kosmas was selected to join the SWAT Team, she repeatedly fell short of the skill level necessary to ensure the safety of the public and her fellow officers. Furthermore, the Plaintiffs allege that Kosmas reacted with hostility to constructive criticism and demonstrated an " intolerable attitude, and disrespectful and antagonistic behavior, and lack of accountability" to her superiors. Id. ¶ 45. Conflict between Kosmas and her fellow officers escalated throughout 2011 and 2012, and Kosmas' superiors, including the Plaintiffs, eventually recommended that she be transferred out of the SWAT Team. Id. However, Kosmas retained counsel, and after she and her attorney met with Cervera, it was determined that she would remain with the SWAT Team and her deficiencies would be resolved internally. Id. ¶ 46. Nevertheless, the Plaintiffs continued to lodge their complaints with Cervera about Kosmas' " incompetence as well as her inability to operate in stressful situations" and " informed Kosmas on multiple occasions that [her] performance was substandard." Id. ¶ 48.

On August 7, 2012, Kosmas filed a Charge of Discrimination with the Equal Opportunity Employment Commission (" EEOC" ). Ex. 1 to Pls.' Mem. Opp'n at 1, ECF No. 11-1. Kosmas alleged that she had been harassed and treated disparately from her male colleagues, and had been retaliated against for her complaints of violations of Title VII of the Civil Rights Act of 1964. Id. at 1-2. The City filed its EEOC Position Statement, in which it characterized Kosmas' charge as the baseless assertions of a " disgruntled employee who refuses to accept the consequences of her own actions," and vehemently denied any suggestion of gender-based discrimination.

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Ex. 2 to Pls.' Mem. Opp'n at 19, ECF No. 11-2. The City's Position Statement extensively reviewed Kosmas' tactical skill deficiencies, her difficulty handling herself in stressful situations, and her poor attitude, particularly in response to criticism from supervising officers. Id. at 3-12.

The EEOC issued a right-to-sue letter to Kosmas, and on February 10, 2014, Kosmas filed suit in this federal court against the City, the VBPD, Cervera, all three Plaintiffs, and several other supervisory SWAT Team officers. Ex. 6 to Pls.' Mem. Opp'n, ECF No. 11-6. In her complaint, Kosmas sought monetary damages, as well as declaratory and injunctive relief, for various iterations of gender discrimination, including a hostile work environment, disparate treatment, and retaliation. Id. at 2-3.

According to the Plaintiffs, the Defendants supported them against Kosmas' claims, until Kosmas filed suit. Compl. ¶ 53. It was not until after Kosmas filed her complaint that the VBPD opened an internal investigation into her allegations of gender discrimination, and the Defendants changed their position vis-@a-vis the Plaintiffs' culpability. Id. ¶ ¶ 54-55.

In early September 2014, Cervera met with each of the Plaintiffs separately to inform them that they were being charged with violating VBPD rules. Id. ¶ ¶ 56, 61, 65. The memorandum of charges provided to each Plaintiff cited their " awareness that [their] subordinates were engaging in inappropriate sexual, racial and/or religious behaviors in the form of statements and physical gestures." Id. ¶ 57; see id. ¶ ¶ 61, 65. Additionally, the memorandum provided to Wilkerson cited his " failure to take action to stop behavior that 'could be considered offensive.'" Id. ¶ 56. The Plaintiffs all denied any wrongdoing. Id. ¶ ¶ 58, 62, 66.

In mid-October 2014, Cervera circulated a memorandum to the entire VBPD entitled " Expectations for Conduct." Ex. 13 to Pls.' Mem. Opp'n, ECF No. 11-13. The memorandum calls for all VBPD officers to treat each other with respect and espouses a zero-tolerance policy for the use of racial, gender-based, or religious slurs, as well as for the viewing or sharing of sexually explicit materials, by members of the VBPD. Id. According to the Plaintiffs, the VBPD had no policy or procedure related to this type of misconduct prior to Cervera circulating the memorandum. Compl. ¶ 70. Just days later, Cervera provided each of the Plaintiffs with a Notice of Disciplinary Action. Id. ¶ ¶ 60, 64, 68. Wilkerson and Shattuck were both suspended for twenty hours, and Willis was suspended for forty hours. Id. The Plaintiffs allege that other supervisory SWAT Team members, who " either had no relationship to the Kosmas case or had not been vocal in alerting the Defendants" to the problems with Kosmas, " received either zero discipline or lesser discipline." Id. ¶ 71. This, the Plaintiffs contend, establishes the " arbitrary and pretextual nature" of their suspensions, and forms the basis of their claims for relief. Id.


Pursuant to Rule 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; it does not resolve contests surrounding the facts of the case, the merits of a claim, or the applicability of any defense. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).[3]

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" 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility means that a " plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). It is, therefore, not enough for a plaintiff to allege facts demonstrating a " sheer possibility" or " mere[] consist[ency]" with unlawful conduct. Id. (citing Twombly, 550 U.S. at 557).

The Supreme Court, in Twombly and Iqbal, offered guidance to courts evaluating a motion to dismiss:

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 679. That is, the court accepts facts alleged in the complaint as true and views those facts in the light most favorable to the plaintiff. E.g., Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005). After so doing, the court should not grant the Defendants' Motion, if the Plaintiffs " demonstrate more than 'a sheer possibility'" that the Defendants have violated their rights, by " articulat[ing] facts, when accepted as true, that 'show' that the [Plaintiffs have] stated a claim entitling [them] to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 677-78).

In resolving this Motion, therefore, the court will assume that the Defendants disciplined the Plaintiffs, not for any valid purpose, but instead to retaliate against the Plaintiffs for voicing legitimate concerns about Kosmas' job performance, and to shield themselves from liability in Kosmas' civil suit for gender discrimination. The court may consider the facts alleged on the face of the Complaint, as well as " matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint." Silverman v. Town of Blackstone,843 F.Supp.2d 628, 631 (E.D. Va. 2012) (citations omitted). The court may also look to documents incorporated by reference in the Complaint ...

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