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Hinton v. Virginia Union University

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

July 20, 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 Plaintiff's MOTION FOR ENTRY OF JUDGMENT UNDER RULE 54(b) OR, ALTERNATIVELY, TO CERTIFY AN INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b) AND TO STAY PROCEEDINGS (Docket No. 15). For the reasons stated below, Plaintiff's MOTION FOR ENTRY OF JUDGMENT UNDER RULE 54(b) OR, ALTERNATIVELY, TO CERTIFY AN INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b) AND TO STAY PROCEEDINGS (Docket No. 15) will be denied.

         BACKGROUND

         Plaintiff Terry Hinton ("Hinton") filed a four-count Complaint against Virginia Union University ("VUU"). Count One alleged Title VII sexual orientation discrimination, stating several reprimands in August and September 2013 as the predicate adverse action. (Compl., Docket No. 1, ¶¶ 26-29). Count Two alleged Title VII retaliation, stating (1) the same August and September 2013 reprimands and (2) a supervisor's refusal to allow Hinton to take VCU classes as the predicate adverse actions. (Compl. ¶¶ 33-36). Count Three alleged Title VII retaliatory harassment, also stating (1) the same August and September 2013 reprimands and (2) a supervisor's refusal to allow Hinton to take VCU classes as the predicate adverse actions. (Compl. ¶¶ 39-41). Count Four alleged an Equal Pay Act claim. (Compl. ¶¶ 43-46).

         On May 4, 2015, the Court entered an Order (Docket No. 11) and an accompanying Memorandum Opinion (Docket No. 10) ("12(b) (6) Mem. Op."), [1] granting in part and denying in part VUU's Motion to Dismiss for Failure to State a Claim. (Docket No. 3). Count One was dismissed in its entirety on two grounds: (1) that under Fourth Circuit law, Title VII does not support a claim for employment discrimination based upon sexual orientation; and, in the alternative, (2) that Hinton failed to plead a cognizable "adverse employment action." (12(b)(6) Mem. Op. 8-32). The Court dismissed Count Two in part, as it pertained to the August and September reprimands.[2] The Court dismissed Count Three in its entirety for failure to state sufficiently adverse harassment. The Court declined to dismiss Count Four's Equal Pay Act claim. (Order, Docket No. 11).

         In response, Plaintiff filed this Motion for Entry of a Final Judgment Pursuant to Rule 54(b) or, Alternatively, to Amend the Court's May 4, 2016 Order in Order to Certify an Interlocutory Appeal Under 28 U.S.C. § 1292(b) (Docket No. 12) and an accompanying memorandum (Docket No. 17) ("Pl.'s Mem."). Hinton seeks to immediately appeal the Court's determination that Title VII does not support a claim for discrimination based upon sexual orientation, either through a partial entry of final judgment under Fed. R. Civ. P. 54 or through certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Pl.'s Mem. 1).

         ANALYSIS

         II. ENTRY OF A PARTIAL FINAL ORDER OF JUDGMENT IS IMPROPER

         A. Legal Standard

         Fed. R. Civ. P. 54(b) provides that "[w]hen an action presents more than one claim for relief . . . the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay."

The tack which the district court must follow to effectuate a Rule 54(b) certification involves two steps . . . First, the district court must determine whether the judgment is final .... a judgment "must be 'final' in the sense that it is 'an ultimate disposition of an individual claim entered in the course of a multiple claims action.' " ... Second, the district court must determine whether there is no just reason for the delay in the entry of judgment.

Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th Cir. 1993) (relying on Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 12 (1980)). In making the "no just reason" determination, "factors the district court should consider, if applicable, include":

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Braswell Shipyards, Inc., 2 F.3d at 1335-36 (relying on Curtiss-Wright Corp., 446 U.S. at 1). Finally, the Supreme Court and Fourth Circuit have recognized that Rule 54(b) certification is an exceptional procedure. Curtiss-Wright, 446 U.S. 1 at 10; Braswell Shipyards, Inc. 2 Fed.3d at 1335.

         There can be no question that the first step is satisfied: the May 4, 2016 order was a final order that dismissed Count One with prejudice. The dispositive issue, then, is "just reason for delay."

         B. Just Reason for Delay

         The factors enumerated in Braswell Shipyards, Inc. uniformly demonstrate that Rule 54(b) certification is inappropriate in this case.

         1. Relationship between Adjudicated and Unadjudicated Claims

         The first factor, the relationship between adjudicated and unadjudicated claims, is either neutral or weakly counsels against entry of a final judgment.

         The Court dismissed Count One, a claim for sexual orientation discrimination in the form of the August and September reprimands, and also dismissed Count Two to the extent that it alleged retaliation in the form of the August and September reprimands. (Order, Docket No. 11). The claims left in the case are Count Two, alleging retaliation in the form of denial of class-taking privileges in retaliation for protected conduct between 2008 and May 2013, and Count Four, alleging an Equal Pay Act claim.

         Hinton concedes that "all of [his] claims related to his employment and thus, at least in some respects, they arise out of a common set of facts, " but asserts that "the adjudicated and unadjudicated claims in this case involve distinct, discrete, and different questions of law." (Pl.'s Mem. 6) (emphasis in original) . Hinton is of the view that the distinct question of law weighs in favor of entry of a final judgment because several other district courts have permitted entry of a partial final judgment where claims involve a common set of facts but distinct legal theories. (Pl.'s Mem. 6-7) (relying on Int'l Union of Electrical, etc. v. Westinghouse Electrical Corp., 631 F.2d 1094, 1098-99 (3rd Cir. 1980); GMAC Mortgage, LLC v. Flick Mortgage Inv'rs, Inc., No. 3:09-CV-125-RJC-DSC, 2012 WL 1098633 (W.D. N.C. Mar. 31, 2012); Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. IB, 225 F.R.D. 171 (D. Md. 2004)). Read more properly, these cases do not weigh in favor of entry of a final judgment; they at best show that it is permissible to enter final judgment when claims arise out of the same facts but involve different legal theories. By Hinton's own characterization of the record, this factor is neutral at best.

         VUU disputes Hinton's characterization, but VUU's argument does not properly reflect the counts currently in play. The Complaint originally pled: Count One, where the August and September reprimands served as the adverse action, and Count Two, where either the August and September reprimands or the denial of class-taking privileges served as the adverse action. (Def.'s Resp. 4-6). VUU argues that, because the same facts (denial of class-taking privileges) and substantially similar legal standards (discrimination's "adverse employment action" and retaliation's similar-but-slightly-lower "materially adverse action") are in play, the legal standards are not sufficiently distinct to fall within the reach of GMAC, Neuberger-Berman, and Int'1 Union. (Def.'s Resp. 4-6). This ignores, however, that the Court dismissed Count Two as it pertained to the August and September reprimands. Therefore, the adjudicated claims are "sexual orientation discrimination in the form of the August and September reprimands" and the unadjudicated claims are "retaliation in the form of denial of class-taking privileges." Thus, VUU is incorrect to say that "the same set of facts - Dr. Green's August and August and September 2013 reprimands - form the basis of both the discrimination and retaliation claims." (Def.'s Resp. 6).[3]

         Although the claims do not arise out of identical facts, it is still easily conceivable that certain facts might be involved in defending both claims. VUU alleges, as an affirmative defense, that Hinton's "remaining Title VII claim in Count [Two] is not actionable because the University's treatment of Plaintiff was based only upon reasonable, legitimate, non-retaliatory, and non-pre-textual factors." (Def.'s Answer, Docket No. 12, 8) . These "legitimate factors" might plausibly rebut a prima facie claim of discrimination in the adjudicated Count One and the prima facie claim of retaliation in the unadjudicated portions of Count Two. E.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973) holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) (discussing framework by which defendant may rebut a plaintiff's prima facie case of discrimination by showing non-pretextual reason for adverse action); Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243 (4th Cir. 2015) (noting McDonnell Douglas framework's applicablity to retaliation claims). Because a single legal defense developed over the course of discovery might dispose of the unadjudicated portions of Count Two, and also rebut Hinton's prima facie case on the adjudicated Count One, there is a conceivable factual and legal relationship between the adjudicated and unadjudicated claims. Because this relationship is only "conceivable, " it does not forcefully counsel in favor of Hinton's request for entry of final judgment. However, it does marginally indicate that entry of final judgment is inappropriate.

         2. Possibility that the Need for Review Might or Might not be Mooted by Future Developments in the District Court

         The possibility that the need for review might or might not be mooted by future developments in the district court strongly ...


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