United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
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.
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.
4, 2015, the Court entered an Order (Docket No. 11) and an
accompanying Memorandum Opinion (Docket No. 10) ("12(b)
(6) Mem. Op."),  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. 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).
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. Â§ 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. Â§ 1292(b).
(Pl.'s Mem. 1).
ENTRY OF A PARTIAL FINAL ORDER OF JUDGMENT IS
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
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
(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.
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
Just Reason for Delay
factors enumerated in Braswell Shipyards, Inc.
uniformly demonstrate that Rule 54(b) certification is
inappropriate in this case.
Relationship between Adjudicated and Unadjudicated
first factor, the relationship between adjudicated and
unadjudicated claims, is either neutral or weakly counsels
against entry of a final judgment.
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.
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.
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
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
Possibility that the Need for Review Might or Might not be
Mooted by Future Developments in the District Court
possibility that the need for review might or might not be
mooted by future developments in the district court strongly