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Pressley v. City of Norfolk

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

September 27, 2017


          OPINION & ORDER

          Henry Coke Morgan, Jr. Senior United States District Judge.

         This matter is before the Court pursuant to Defendant City of Norfolk, Virginia's ("Norfolk's" or "Defendant's") Motion to Dismiss Count I and Count III of Plaintiff Vincent E. Pressley's ("Pressley's" or "Plaintiffs") Complaint ("Motion"). Doc. 4. Norfolk also filed a request for a hearing on the Motion. Doc. 11. The Court FINDS that no hearing is necessary because the proper disposition of the Motion is clear from the briefs. For the reasons stated herein, the Court GRANTS the Motion IN PART, DISMISSING Count I for failure to exhaust administrative remedies.

         I. BACKGROUND

         A. Factual Allegations

         This action arises from the alleged wrongful termination of Pressley, an African American former city maintenance mechanic at Norfolk's Moore's Bridge Water Treatment Facility ("Moore's Bridge"). See Doc. 1 ("Compl."), ¶¶ 11-12. Pressley began working at Moore's Bridge on April 1, 1992. Id. ¶ 11. In early 2015, he began applying for a Meter Mechanic position in the department. Id. ¶ 13. When he inquired regarding the status of his applications, the Meter Mechanic Supervisor informed him that the supervisor had never received any of the applications from human resources. Id. Subsequently, on October 7, 2015, Pressley received a disciplinary notice for "leaving his work area without permission to purchase lottery tickets for co-workers." Id. ¶ 14. He alleges that this notice was false because his supervisor instructed him to purchase the lottery tickets. Id. ¶ 15. He further alleges that Caucasian and Filipino coworkers left the work area during the same time period without permission and with company vehicles but were not punished. Id. ¶ 16.

         Pressley alleges that this disciplinary action was consistent with many racially discriminatory practices. See id ¶¶ 17-24. Such practices include passing over African-American employees for promotions and forcing African-American employees to pick up trash by hand while Caucasian employees used tools. Id. ¶¶ 17-18. Supervisors Marvin Burheim ("Burheim") and Billy Branch ("Branch") also allegedly used racial epithets, with Branch using one at Pressley in particular. Id. ¶ 19. Burheim also referred to the job site as a plantation, to Pressley's vocal objection, which led to "more severe" treatment of Pressley by Burheim. Id. ¶¶ 20-21. In addition, another employee named Michael Robinson reported the racial discrimination to Linda Balance in the human resources department and was shortly thereafter fired for "abandoning his job." Id. ¶¶ 22-23. Pressley seeks damages for three (3) claims: hostile work environment, retaliatory discharge, and racial discrimination. Id. ¶¶ 25-39.

         B. Procedural History

         Pressley previously filed two (2) Equal Employment Opportunity Commission ("EEOC") charges on October 19, 2015 and on December 2, 2015, respectively. See Compl. ¶¶ 5-8. On February 28, 2017, the EEOC issued a dismissal and notice of right to sue on the second charge. Id. ¶ 8. Pressley filed his Complaint in this Court on May 17, 2017. Compl. On June 15, 2017, Norfolk filed the instant Motion. Doc. 4. Norfolk also filed an answer. Doc. 6. Pressley responded in opposition to the instant Motion on June 28, 2017. Doc. 8. Norfolk replied on July 5, 2017. Doc. 10. The Final Pretrial Conference ("FPTC") is scheduled for February 15, 2018, and trial is scheduled for February 27, 2018. Doc. 12.

         II. LEGAL STANDARD[1]

         Under Federal Rule of Civil Procedure 12(b)(1), a court may dismiss a claim against a defendant for lack of subject matter jurisdiction. Federal district courts are courts of limited subject matter jurisdiction. Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Accordingly, "[t]he objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation...." Arbaueh v. Y & H Corp., 546 U.S. 500, 506 (2006) (citing Fed.R.Civ.P. 12(b)(1)). The court may accept evidence on any disputed jurisdictional facts without converting a motion to dismiss into a motion for summary judgment. See Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The plaintiff has the burden of proof on subject matter jurisdiction. Id.

         III. ANALYSIS

         Norfolk seeks dismissal of two (2) of Pressley's three (3) claims for relief for failure to exhaust administrative remedies. "In any subsequent lawsuit alleging unlawful employment practices under Title VII, a federal court may only consider those allegations included in the EEOC charge." Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996)). "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (quoting Evans, 80 F.3d at 963). A plaintiff has failed to exhaust administrative remedies where, for example, the charge only alleges retaliation and the complaint adds racial discrimination. See Id. at 301; see also Sydnor v. Fairfax Cty. Va., 681 F.3d 591, 594 (4th Cir. 2012) (citing Jones). In contrast, a plaintiffs claims are reasonably related to their initial charge where, for example, both allege discrimination in promotion, but the complaint discusses a different aspect of the promotional system, or both allege retaliation, but the complaint discusses different retaliatory conduct. See Sydnor, 681 F.3d at 594 (citing Chisholm v. U.S. Postal Serv.. 665 F.2d 482, 491 (4th Cir. 1981) and Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000), respectively).

         Two EEOC charges are at issue here. The first charge states as follows:

I. I have been employed with this company since April 1992, as a Maintenance Mechanic I. Throughout my tenure, I have received above average performance evaluation. Since the beginning of 2015, I have applied for Meter Mechanic position several times, a position I held until 2004. I was approached by Meter Mechanic Supervisor and told that they never saw my application that it must have been pulled by Human Resources or Assistant Director, Eric Tucker. On October 7, 2015, 1 received a disciplinary notice for leaving the work area without permission to purchase lottery tickets for ...

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