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Barr v. Virginia Alcohol Beverage Control

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

July 28, 2017

LESLEY BARR, Plaintiff,


          Henry E. Hudson, United States District Judge

         Pro se Plaintiff Lesley Barr ("Plaintiff) brings this civil rights action alleging that she was unlawfully discriminated against when she was fired from her position as a sales associate with the Virginia Alcohol Beverage Control ("ABC").

         This matter is before the Court on Defendants ABC, Kate Sheehan, and Beverly Anderson's (collectively, the "Defendants") Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (ECF No. 9), filed on June 21, 2017.[1]

         Defendants included an appropriate Roseboro Notice with their Motion, as required by Local Civil Rule 7(K) and the Fourth Circuit's decision in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

         All parties have filed memoranda supporting their respective positions. The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before it, and oral argument would not aid in the decisional process. E.D. Va. Local Civ. R. 7(J).

         For the reasons stated herein, the Court will dismiss the Complaint in its entirety.

         I. BACKGROUND

         As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court assumes Plaintiffs well-pleaded allegations to be true and views all facts in the light most favorable to her. T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993)). At this stage, the Court's analysis is both informed and constrained by the four corners of Plaintiff s Complaint. Viewed through this lens, the facts are as follows.

         Plaintiff is an openly gay African American woman. (See Compl. ¶¶ 23-25, ECF No. 4.) ABC hired her as a sales associate on October 4, 2010, and promoted her to lead sales associate on April 26, 2013. (Id. ¶ 5.) She worked at store number 187 in Richmond, Virginia, and earned $10.69 per hour. (Id. ¶¶ 5, 8.) While employed with ABC, Plaintiff applied for, but never received, any other promotions. (Id. ¶ 6.) Nonetheless, she regularly performed managerial functions at her store. (Id. ¶8.) Plaintiff alleges that a white female co-worker "was promoted to manager despite the fact that she had not worked for [ABC] longer than [Plaintiff] nor had she performed managerial functions as [Plaintiff] had." (Id. ¶ 7.)

         In 2015, Anderson began working as a sales associate at store 187. (Id. ¶ 11.) Plaintiff claims that Anderson continuously "preached" her Christian beliefs to other employees. (Id. ¶ 12.) Anderson also allegedly gave Plaintiff "inappropriate looks" and made comments under her breath about Plaintiffs sexual orientation. (Id.)

         Anderson "communicated her feelings" about Plaintiff to Sheehan, the ABC regional manager. (Id. ¶ 13.) Sheehan, who Plaintiff claims is "pro-White, " then directed the store manager to fire Plaintiff. (Id.)

         ABC fired Plaintiff on March 18, 2016. (Id. ¶ 8.) Its justification was that Plaintiff had abused "discretionary breaks during working hours." (Id. ¶ 11.) Plaintiff alleges that this is merely pretext, because it was "conduct that every employee at Store 187 engaged in on a daily basis, " yet no one else was fired or disciplined. (Id. ¶¶ 10-11.)

         Plaintiff attempted to challenge her firing with ABC, but it denied the hearing that she requested. (Id. ¶14.) Thus, on September 12, 2016, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 15.) The EEOC charge alleged that ABC discriminated against Plaintiff because of her race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. ("Title VII"). (ECFNo. 10-1.) (EEOC File 15, ECF No. 14-1.) On January 26, 2017, the EEOC issued a ninety-day right to sue letter, which Plaintiff received in the mail January 28, 2017. (Compl. ¶16; EEOC File 5.) Plaintiff then filed this action on April 27, 2017.

         The Complaint includes an array of federal and state causes of action. As best the Court can discern, Plaintiff raises twelve discrete claims: retaliation, race discrimination, gender discrimination, sexual orientation discrimination, and hostile work environment, all in violation of Title VII; wage discrimination and retaliation, in violation of the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA"); violations of 42 U.S.C. §1983, 42 U.S.C. §1985(3), and 42 U.S.C. §1986; violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and common law intentional infliction of emotional distress.


         a. 12(b)(1)

         A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the court's jurisdiction over the subject matter of the complaint. In resolving motions to dismiss under Rule 12(b)(1), a court may consider affidavits, depositions, or live testimony without converting the motion into one for summary judgment. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Furthermore, within the context of a Rule 12(b)(1) motion to dismiss, a court may resolve factual questions to determine whether it has subject-matter jurisdiction. Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986), overruled on other grounds, Sheridan v. United States, 487 U.S. 392 (1988).

         Because subject-matter jurisdiction implicates a federal court's constitutional power to act, it may be raised at any time either by the court sua sponte or by one of the parties. Plyler v. Moore, 129 F.3d 728, 731 n.6 (4th Cir. 1997). The burden of demonstrating subject-matter jurisdiction resides with the Plaintiff. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         b. 12(b)(6)

         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it 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) (citation omitted). The Federal Rules of Civil Procedure "require[] 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."' BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not assert "detailed factual allegations, " but must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level" to one that is "plausible on its face, " rather than merely "conceivable." Id. at 555, 570.

         In considering such a motion, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. T.G. Slater, 385 F.3d at 841 (citation omitted). Legal conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         c. Liberal Construction of the Pro Se Plaintiffs Complaint

         Although courts are not required to "conjure up questions never squarely presented to them ... [or] construct full blown claims from sentence fragments, " Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), pro se complaints must be "liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However "inartfully pleaded, "pro se complaints must be held to less stringent standards than those drafted by skilled lawyers. Id.

         III. ...

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