United States District Court, E.D. Virginia, Norfolk Division
VINCENT E. PRESSLEY, Plaintiff,
CITY OF NORFOLK, VIRGINIA, Defendant.
OPINION & ORDER
Coke Morgan, Jr. Senior United States District Judge.
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
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.
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.
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.
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.
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).
EEOC charges are at issue here. The first charge states as
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