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Hinton v. Virginia Union University

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

May 5, 2016

TERRY HINTON, Plaintiff,
v.
VIRGINIA UNION UNIVERSITY, Defendant.

MEMORANDUM OPINION

Robert E. Payne Senior United States District Judge.

This matter is before the Court on Defendant Virginia Union University's MOTION TO DISMISS COMPLAINT (Docket No. 3). For the reasons stated below, the motion will be granted in part and denied in part.

BACKGROUND

Plaintiff Terry Hinton ("Hinton") filed this action against Virginia Union University ("VUU") alleging four counts: (1) a Title VII sex discrimination claim; (2) a Title VII retaliation claim; (3) a Title VII retaliatory harassment claim; and (4) an Equal Pay Act claim. (Compl., Docket No. 1). The factual allegations forming the basis for these claims are set out as they are pleaded in the Complaint, according all favorable inferences to the Plaintiff.

Hinton, an openly gay male, has been employed as an administrative assistant at VUU since October 2006. (Compl. Ill. 4-6). In early 2008, Hinton provided deposition testimony and a declaration in support of a former VUU professor who filed a Title VII religious discrimination claim against VUU; the case was "resolved." (Compl. ¶¶ 7, 9). In 2008, Hinton also filed his own Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"}; the complaint was "resolved." (Compl. ¶¶ 8-9).

Hinton alleges that he was (and is to this day) paid less than his fellow female administrative assistants, noting that he is "the only male administrative assistant in VUU's Academic Affairs Department and is paid less than the four most comparable female administrative assistants in the Department. Indeed, three of the four individuals have less seniority than Hinton and the fourth has only been with VUU for one more month than Hinton." (Compl. ¶ 20). "There are no differences in seniority, merit, quantity or quality of production" between Hinton and the female administrative assistants, and "[t]he only meaningful difference between the four comparable VUU administrative assistants" and Hinton is the difference in gender. (Compl. ¶ 20). In May 2013, Hinton "raised the issue of unequal pay to his then-supervisor, " complaining specifically that his "female comparators were paid higher wages than he was." (Compl. ¶ 22). That unnamed supervisor informed Hinton that VUU would not increase his wage to match that of his female counterparts. (Compl. ¶ 22).

Before August 1, 2013, Hinton had never been reprimanded or disciplined for talking about sex with co-workers, lending money to or borrowing money from coworkers, talking about "University business, such as the transfers of fellow employees or the salary information of VUU employees, " or "generally talking about personal matters with fellow VUU employees." (Compl. ¶ 12) .

However, on or about August 1, 2013, Dr. Latrelle Green ("Green") became Interim Dean of the School of Mathematics, Science, and Technology, a move that also made her Hinton's direct supervisor. (Compl. ¶ 10). Green was "aware of Hinton's past outspoken support for his own civil rights and the rights of others. She was also aware of Hinton's prior EEOC charge." (Compl. ¶ 11). On August 6, 2013, Green "verbally counseled" Hinton to stop engaging in "petty gossip." (Compl. ¶ 13). On August 29, 2013, Green "told [Hinton] that he had already been warned to stop engaging in Mrama and recurring gossip' and told him to cease." (Compl. ¶ 14). On September 6, 2013, Green "wrote Hinton a letter in which she detailed many instances of alleged 'unprofessional misconduct.'" (Compl. ¶ 15). "The letter served as a written reprimand and was placed in Hinton's personnel file." (Compl. ¶ 15). Hinton's Complaint states that he engaged in no unprofessional conduct, and that "most of the items identified ... are false or grossly exaggerated." (Compl. ¶ 16). At some unspecified point after September 6, 2013, Green refused to let Hinton take classes at Virginia Commonwealth University ("VCU") (Compl. ¶ 19), notwithstanding that other VUU employees had been allowed to take classes at VCU for some time. (Compl. ¶ 34). Hinton characterizes this refusal as "retaliation." (Compl. ¶ 19).

Hinton filed a second EEOC charge at in 2013, but the Complaint does not state when the 2013 charge was filed. VUU states that the 2013 EEOC charge was filed on September 10, 2013, in response to Dr. Green's reprimands. (Def.'s Mem 10; Docket No. 4, Ex. C) .[1]

At some unspecified point before August 2015, Green ceased to be Hinton's supervisor. Hinton's subsequent supervisor gave Hinton permission to take classes at VCU. (Compl. ¶ 19).

In August 2015 (after Green ceased to be Hinton's supervisor), Green "candidly admitted to Hinton that one of the reasons she gave Hinton the September 6, 2013 reprimand letter" was that Dr. Claude Perkins ("Perkins"), the President of VUU, "told her to do so because he had a problem with Hinton's sexual orientation." (Compl. ¶ 18) .

On these facts, Hinton presents four counts against VUU. Count I alleges Title VII discrimination on the basis that: (1) Hinton is entitled to Title VII's protection against sex discrimination; (2) Hinton was reprimanded in August and September 2013 because Perkins (VUU's president) did not like his sexual orientation; and (3) as a direct result of that reprimand, Hinton suffered a "loss of potential occupational opportunities" and various emotional harms. (Compl. ¶¶ 26-29). Count II alleges Title VII retaliation on the basis that: (1) Hinton engaged in protected activities in 2008 and 2013; (2) VUU retaliated against Hinton by disciplining him in August and September 2013 ("based on false allegations and in a manner that was disparate to other VUU employees") and refusing to allow him to take VCU classes; and (3) as a direct result of that retaliation, Hinton suffered a "loss of potential occupational opportunities" and various emotional harms. (Compl. ¶¶ 33-36). Count III alleges Title VII retaliatory harassment, on the basis that: (1) Hinton engaged in protected activities in 2008 and 2013; (2) VUU retaliated against Hinton by disciplining him in August and September 2013 ("based on false allegations and in a manner that was disparate to other VUU employees") and refusing to allow him to take VCU classes; and (3) as a direct result of that retaliatory harassment, Hinton suffered a "loss of potential occupational opportunities" and various emotional harms. (Compl. ¶¶ 39-41).[2] Count IV alleges that Hinton, a male, was paid less than his comparable female counterparts.

VUU filed this Motion to Dismiss (Docket No. 3) along with a Memorandum of Law in Support (Docket No. 4) ("Def.'s Mem."). VUU seeks to dismiss all four counts pursuant to Fed.R.Civ.P. 12(b)(6) (failure to state a claim) and Fed.R.Civ.P. 12(b)(4) (insufficient process). Plaintiff filed a Memorandum in Opposition (Docket No. 7) ("PL's Opp."), and Defendant filed a Reply (Docket No. 9) ("Def.'s Reply").

DISCUSSION

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the legal sufficiency of a complaint. Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir. 2006). Fed.R.Civ.P. 8(a)(2) "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) .

When deciding a motion to dismiss under Rule 12(b)(6), a court "draw[s] all reasonable inferences in favor of the plaintiff." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). However, while the court must "will accept the pleader's description of what happened" and "any conclusions that can be reasonably drawn therefrom, " the court "need not accept conclusory allegations encompassing the legal effects of the pleaded facts, " Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.1998); Chamblee v. Old Dominion Sec. Co., L.L.C., No. 3:13CV820, 2014 WL 1415095, *4 (E.D. Va. 2014). Nor is the court required to accept as true a legal conclusion unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Twombly and Iqbal also made clear that the analytical approach for evaluating Rule 12(b)(6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic recitation of the elements of a claim and to conduct a context-specific analysis to determine whether the well-pleaded factual allegations plausibly suggest an entitlement to relief." Wright & Miller, supra/ Chamblee, supra. In sum, a 12(b)(6) motion should be granted if, "after accepting all well-pleaded allegations ... as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro/ 178 F.3d 231, 244 (4th Cir. 1999).

These principles govern resolution of VUU's motion. Each count will be considered in turn.

A. Count I: Title VII Discrimination

VUU's motion will be granted as it pertains to Count I because Title VII does not afford a claim for sexual orientation discrimination and thus Hinton does not belong to a protected class. In the alternative, Hinton does not plead that VUU took a cognizable "adverse employment action" against him." Count I will be dismissed.

1. Title VII Does Not State a Claim for Sexual Orientation Discrimination

VUU seeks dismissal of Count I because Title VII affords no predicate for a claim of discrimination on account of sexual orientation.

Title VII prohibits discrimination based on "race, color, religion, sex, or national origin." 42 U.S.C. §§ 2000e-(2) (a) (1) . It is explicitly the lav/ of the Fourth Circuit that Title VII does not protect against discrimination based on sexual orientation. Murray v. N. Carolina Dep't of Pub. Safety, 611 F.App'x 166 (4th Cir. 2015) (relying on Wriqhtson v. Pizza Hut of America, Inc., 99 F.3d 138, 143 (4th Cir. 1996); see also, e.g., Lewis v. High Point Reg'l Health Sys., 79 F.Supp. 3d 588, 589 (E.D. N.C. 2015) (same); Henderson v. Labor Finders of Virginia, Inc., No. 3:12CV600, 2013 WL 1352158, at *4 (E.D. Va. Apr. 2, 2013) (same).

Hinton attacks the law of the circuit on two grounds: first, that Wrightson has no precedential value, and second that Wriqhtson has been essentially superseded by a 2015 EEOC decision. (PL's Mem. 5-11).

(a) Wrightson Applies In This District

Hinton challenges the precedential value of Wriqhtson in an attempt to dislodge the cases that have restated or relied upon Wrightson. According to Hinton, the text in Wrightson stating that "Title VII does not afford a cause of action for discrimination based upon sexual orientation" is dicta because the case actually turned on issues of same-sex sexual harassment. (PL's Mem. 5).[3]

Although Wrightson's rule began its life as dicta, the rule has subsequently been incorporated in a substantive manner into the holdings of several district courts within the Fourth Circuit, this Court included. Henderson, 2013 WL 1352158, at *4; see also Dawkins v. Richmond Cty. Sch., No. 1:12CV414, 2012 WL 1580455, at *4 (M.D. N.C. May 4, 2012); Dudley v. 4-McCar-T, Inc., No. 7:09-CV-00520, 2011 WL 1742184, at *4 (W.D. Va. May 4, 2011) aff'd, 458 F.App'x 235 (4th Cir. 2011); Fenner v. Durham Cty. Pet. Ctr., No. 1:10CV369, 2010 WL 4537850, at *2 (M.D. N.C. Nov. 3, 2010); Wamsley v. Lab Corp., No. CIV.A. 1:07CV43, 2007 WL 2819632, at *1 (N.D. W.Va. Sept. 26, 2007).

Wrightson has also been noted or relied upon by other federal circuit courts in formulating holdings that subscribe to Wrightson's dicta. In Simonton, relying in part on Wrightson, the Second Circuit upheld the dismissal of a sexual orientation discrimination claim under Rule 12(b)(6), holding that "[b]ecause the term 'sex' in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation, Title VII does not proscribe discrimination because of sexual orientation." Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (citing DeCinto v. Westchester County Med. Ctr., 807 F.2d 304, 306-07 (2d Cir. 1986). Citing Simonton and Wrightson, the Tenth Circuit followed suit in Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1135 {10th Cir. 2005). Those decisions reflect accurately the text and reach of Title VII. They also reflect the law in this district that Title VII provides no claim for discrimination on account of sexual orientation.

(b) The EEOC Has Not Displaced Wrightson

Hinton also argues that, even if Wrightson is settled law, Wrightson was displaced by a July 2015 EEOC ruling that Title VII protects against discrimination based on sexual orientation. (PL's Opp. 7-11) (relying on Baldwin v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *1 (July 16, 2015)).

EEOC interpretations of Title VII are entitled to Skidmore deference at most - that is, "deference to the extent [that they have] the power to persuade." Vill. of Freeport v. Barrella, No. 14-2270-CV, 2016 WL 611877, at *11 (2d Cir. Feb. 16, 2016) (relying on Townsend v. Benjamin Enters., Inc.,, 679 F.3d 41, 53 (2d Cir. 2012); Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013)); Crump v. TCoombs & Associates, LLC, No. CIV.A. 2:13CV707, 2015 WL 5601885, at *24 n.12 (E.D. Va. Sept. 22, 2015) (EEOC guidance given deference only to the extent that it has power to persuade). The district courts that have decided Title VII claims in the wake of Foxx have also given the EEOC's interpretation of Title VII deference to the extent that the EEOC's decision is persuasive. E.g., Christiansen v. Omnicom Grp., Inc., No. 15 CIV. 3440 (KPF), 2016 WL 951581, at *15 (S.D.N.Y. Mar. 9, 2016); Videckis v. Pepperdine Univ., No. CV1500298DDPJCX, 2015 WL 8916764, at *8 (CD. Cal. Dec. 15, 2015); Isaacs v. Felder Servs., LLC, No. 2:13CV693-MHT, 2015 WL 6560655, at *3-4 (M.D. Ala. Oct. 29, 2015); Dew v. Edmunds, No. 1:15-CV-00149-CWD, 2015 WL 5886184, at *9 (D. Idaho Oct. 8, 2015); Burrows v. Coll. of Cent. Florida, No. 5:14-CV-197-OC-30PRL, 2015 WL 5257135, at *2 (M.D. Fla. Sept. 9, 2015).

District courts have, however, split on whether to follow the EEOC or to follow the law of their regional circuits and their own districts. Christiansen and Burrows noted that the EEOC s decision was entitled to deference to the extent that it was persuasive, but found that the decision could not displace the explicit holdings of their regional circuit court (in the case of Christiansen) or of their own district (in the case of Burrows). Christiansen, 2016 WL 951581, at *15; Burrows, 2015 WL 5257135, at *2. As the Christiansen court noted: (1) the conduct before it was "reprehensible"; (2) "[t.]he broader legal landscape has undergone significant changes" toward increased protection against sexual orientation discrimination in recent years;[4] and (3) current rules recognizing Title VII discrimination claims based on sexual stereotyping but barring claims based on sexual orientation discrimination[5] are incoherent. Christiansen, 2016 WL 951581, at *13-15. However, that court still concluded that that, under binding Second Circuit precedent, [6] it could not adopt the EEOC's position.

By contrast, Isaacs and Videckis adopted the EEOC's position without addressing governing precedent from the regional circuit or their own district. Isaacs, 2015 WL 6560655, at *3-4; Videckis, 2015 WL 8916764, at *8. The Eastern District of New York adopted the EEOC's position, notwithstanding explicit Second Circuit law to the contrary. Roberts v. United Parcel Serv., Inc., 115 F.Supp. 3d 344 (E.D.N.Y. 2015) (surveying the federal and local sea-change in attitudes towards sexual orientation discrimination).[7] For that reason, Roberts is of no effect, because a district court simply cannot change the law of the regional circuit.

Finally, the Fourth Circuit cited Wrightson' s rule approvingly even after the EEOC decision. Murray v. N. Carolina Dep't of Pub. Safety, 611 F.App'x 166 (4th Cir. 2015). However, Murray (1) is unpublished, (2) cites Wrightson in dicta, (3) is a brief per curiam opinion with no legal analysis of its own; and (4) shows no sign that the Fourth Circuit was even aware of the EEOC decision in Foxx when it issued Murray. Nonetheless, at the margins, Murray makes clear that Wrightson is still considered to be the basis for decision in the jurisprudence of the Fourth Circuit and by district courts in this circuit.

More importantly, the reasons offered in decisions that have adopted the EEOC's position are matters that lie within the purview of the legislature, not the judiciary. Title VII is a creation of Congress and, if Congress is so inclined, it can either amend Title VII to provide a claim for sexual orientation discrimination or leave Title VII as presently written. It is not the province of unelected jurists to effect such an amendment.

In sum, Title VII does not encompass sexual orientation discrimination claims, and cannot be supplanted by the merely-persuasive power of the EEOC s decision. For the foregoing reasons, Hinton does not state a claim for discrimination under Title VII and Count I will be dismissed.

2. Alternatively, Count X Fails to Adequately Plead an Adverse Employment Action

Ordinarily, it is preferable to avoid alternative holdings. Karsten v. Kaiser Found. Health Plan of the Middle Atlantic States, Inc., 36 F.3d 8, 11 (4th Cir. 1994); Amato v. City of Richmond, 875 F.Supp. 1124, 1139 (E.D. Va. 1994), aff'd, 78 F.3d 578 (4th Cir. 1996). However, given the evolving state of the law and split district court decisions respecting whether sexual orientation discrimination claims are cognizable under Title VII, it is prudent also to consider VUU's argument that Hinton has not adequately pled the adverse employment action element of a Title VII discrimination claim.

(a) Preliminary Issue On Pleading Requirements

A plaintiff can prove Title VII unlawful discrimination in one of two ways: either with direct evidence or through the "prima facie" method (also called "burden shifting" or the McDonnell Douglas framework).[8]

First, in the "direct" method, a plaintiff can provide (1) direct or indirect evidence of intentional discrimination (2) against plaintiff for belonging to a protected class, which motivated (3) an adverse employment action. E.g., Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) abrogated on other grounds by Nassar, 133 S.Ct. at 2532; see also Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (recognizing such abrogation). "Direct evidence may include ... statements by an employee's supervisors that are generally discriminatory or statements by supervisors that indicate that their actions were motivated by the employee's race or sex, or in retaliation against filed EEOC claims .... Courts routinely consider indirect evidence to be tantamount to circumstantial evidence." Lee v. Wade, No. 3:15CV37, 2015 WL 5147067, at *3 (E.D. Va. Aug. 31, 2015) (adopting report and recommendation); see also Martin v. Scott & Stringfellow, Inc., 643 F.Supp.2d 770, 782 (E.D. Va.) aff'd, 352 F.App'x 778 (4th Cir. 2009).

Second, "in the absence of [direct] evidence, a plaintiff may prove unlawful discrimination under the burden-shifting framework established in McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973)." Lee, 2015 WL 5147067, at *3. "To establish a prima facie case of race discrimination under McDonnell Douglas, a plaintiff must demonstrate * (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.'" Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 626 (4th Cir. 2015) (quoting Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012)). Once a plaintiff makes the prima facie case, "the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection, " after which the plaintiff must "be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 802-04.[9]

In light of this, Hinton is not entirely correct in citing Coleman for the proposition that, in the employment context, "a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss." (PL's Opp. 4) (quoting Coleman, 626 F.3d at 190). At the same time, VUU is not entirely correct in quoting Lee for the proposition that "the plaintiff must plead sufficient facts to allow the court to reasonably infer a prima facie case." {Def.'s Mem. 4). Instead, a plaintiff must plead facts that, when all reasonable inferences are drawn in the plaintiff's favor, e.g., Edwards, 178 F.3d at 244, would permit finding either that the plaintiff has pled a "direct" case or that plaintiff has made a prima facie case.

In this case, Hinton alleges that Green told him that "one of the reasons she gave Hinton the September 6, 2013 reprimand letter was that ... the President of VUU [] told her to do so because he had a problem with Hinton's sexual orientation." (Compl. ¶ 18). Assuming that there is a Title VII claim for sexual orientation discrimination (which, as discussed in the previous section, there is not) that is the sort of direct evidence that would require the court to analyze Hinton's complaint by the direct evidence method.

Even under the direct evidence method, Hinton must still plead facts that would allow the court, drawing all reasonable inferences in Hinton's favor, to conclude that Hinton adequately pled both that Hinton is a part of a protected class as a gay man, and also that VUU took adverse employment action against Hinton. Hill, 354 F.3d at 284; Edwards, 178 F.3d at 244. Aside from the issue of protected class, as discussed above, VUU argues that the August and September reprimands do not constitute adverse employment action (Def.'s Mem. 5-9; Def.'s Reply 4-9), and thus that Hinton has not adequately pled a Title VII claim even if he were a member of a protected class. Accordingly, the Court next considers whether Hinton has stated facts which plausibly support the existence of an adverse employment action.

(b) "Adverse Employment Action"

To be cognizable under Title VII's prohibition on workplace discrimination, the employer must engage in an "adverse employment action." E.g., Goode, 807 F.3d at 625. The August and September 2013 reprimands, absent allegations of collateral consequences, do not rise to the level of "adverse employment action, " and cannot support a claim for discrimination under Title VII.

Title VII protects against adverse employment actions, not all workplace injustices. "The italicized words in [42 U.S.C. § 2000e-2(a)(1)] - 'hire, ' 'discharge, ' 'compensation, terms, conditions, or privileges of employment, ' 'employment opportunities, ' and 'status as an employee' - explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 2411-12, 165 L.Ed.2d 345 (2006); see also Jeffers v. Thompson, 264 F.Supp.2d 314, 329 (D. Md. 2003) (noting that discriminatory conduct must "materially alter the terms, conditions, or benefits of employment" resulting in "discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion."). Thus, "[t]o prevail on a Title VII claim, *the existence of some adverse employment action is required.'" Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotations omitted). "An adverse employment action is a discriminatory act that 'adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment.'" Id.

The United States Court of Appeals for the Fourth Circuit and its district courts have hewed to the view that neither oral nor written reprimands constitute the sort of adverse employment action cognizable under Title VII unless plaintiff also alleges that the reprimand has potential collateral consequences that rise to the level of an adverse employment action. In Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 429 (4th Cir. 2015) the Court of Appeals affirmed a grant of summary judgment for the reason that "neither the written nor the verbal reprimands qualify as adverse employment actions, because they did not lead to further discipline." In Prince-Garrison v. Maryland Dep't of Health & Mental Hygiene, 317 F.App'x 351, 353 (4th Cir. 2009), the Fourth Circuit affirmed a dismissal pursuant to Rule 12(b)(6) because "reprimands for insubordination, meetings with supervisors, and directions to attend counseling, do not constitute adverse employment actions."[10] In Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 755 (4th Cir. 1996), the Court of Appeals affirmed a grant of summary judgment for defendant where the plaintiff "received a formal disciplinary warning . . . but the warning was subsequently removed from his personnel record." In Jeffers, the district court granted summary judgment because:

[l]ike a reprimand, a poor performance rating does not in itself constitute an adverse employment action . . . Rather, it is a mediate step, which, if relied upon for a true adverse employment action (e.g., discharge, demotion, etc.) becomes relevant evidence... HHS never used Ms. Jeffers' 'unacceptable' performance rating to her detriment. Moreover, like the reprimand she received, the negative evaluation remained in her official personnel file only two years/ the file now contains no record of it... Accordingly, Ms. Jeffers' performance rating does not rise to the level of an adverse employment action.")

Jeffers, 264 F.Supp. at 330 (internal quotations omitted). In this district, the Court granted summary judgment for the employer where the employee received a reprimand, but there was no "evidence in the record that he suffered any adverse effect on the terms, conditions, or benefits of his employment." Jackson v. Winter, 497 F.Supp.2d 759, 771 (E.D. Va. 2007)

As VUU correctly points out, Hinton has not alleged that Green's reprimands ever led to an adverse employment action that affected the terms or conditions of his employment. Indeed, Hinton does not contend that the Complaint contains such an allegation. Instead, he argues that the Complaint need not specifically allege that the reprimand led to adverse employment action. For that contention, Hinton relies on Law v. Autozone Stores, Inc., No. CV 4:09CV17, 2009 WL 4349165 (W.D. Va. Nov. 25, 2009) and Koenig v. McHugh, 3:11cv60, 2012 WL 1021849 (W.D. Va. Mar. 26, 2012). Hinton also argues that most of VUU's cases involve summary judgment and thus are not controlling at this stage of the proceedings. There are three major flaws with Hinton's reliance on these cases: (1) Koenig does not support Hinton's position; (2) Law is inapplicable after Iqbal; and (3) Prince-Garrison indicates that the distinction between a motion to dismiss and a motion for summary judgment should not alter the analysis that was the basis for the decision in Adams and similar cases.

(i) Koenig Requires Allegations of Collateral Consequences

In Koenig, plaintiff's employer issued her a written reprimand (a "warning letter"). Koenig, 2012 WL 1021849, at *3. Koenig alleged that the letter "subjected [her] to more serious discipline than she would otherwise be subject to in the ...


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