United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION
E. Hudson, United States District Judge
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
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.
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).
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).
reasons stated herein, the Court will dismiss the Complaint
in its entirety.
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.
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.)
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
"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.)
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.
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.
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.
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).
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).
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.
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).
Liberal Construction of the Pro Se Plaintiffs
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.