United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge.
matter comes before the Court on two motions filed by
Defendants Virginia Department of Games and Inland Fisheries
("VDGIF"), Virginia Department of Human Resources
Management ("VDHRM"), and VDGIF Executive Director
Robert W. Duncan (collectively, the "Defendants"):
(1) the "Partial Motion to Dismiss Plaintiffs'
Complaint" (the "Partial Motion to Dismiss"),
(ECF No. 6); and, (2) the "Motion to Disqualify
Plaintiffs [sic] Counsel" (the "Motion to
Disqualify"), (ECF No. 14). Plaintiffs Vonne Harrison
Carter, Dr. Joice Eaddy Conyers, Charlene Thomas Easter, and
Carol King-Robinson (collectively, the
"Plaintiffs") responded to the Partial Motion to
Dismiss, (ECF No. 10), and the Defendants replied, (ECF No.
12). The Plaintiffs responded to the Motion to Disqualify,
(ECF No. 17), and the Defendants replied, (ECF No. 19).
matters are ripe for disposition. The Court dispenses with
oral argument because the materials before it adequately
present the facts and legal contentions, and argument would
not aid the decisional process. For the reasons that follow,
the Court will deny the Motion to Disqualify and grant in
part the Partial Motion to Dismiss.
Factual and Procedural Background
Summary of Allegations in the
the four Plaintiffs identifies herself as "black"
and works or has worked at VDGIF for the time period stated
in the Complaint: VDGIF employed Ms. Carter from January 2010
until October 2014; VDGIF employed Dr. Conyers from December
2009 until January 2015; VDGIF has employed Ms. Easter since
January 2014; and, VDGIF has employed Ms. King-Robinson since
November 2013. Defendant VDGIF maintains responsibility for
management and law enforcement regarding inland fisheries,
wildlife, and recreational boating throughout the
Commonwealth of Virginia. Defendant VDHRM acts as the central
human resource agency for the Virginia government.
Court will outline the Plaintiffs' general allegations,
followed by the allegations as they pertain to each plaintiff
General Discriminatory Hiring Standards and Practices at
Complaint alleges that "[e]ach Plaintiff observed VDGIF
recruitment and/or hiring practices in which [whites] were
disproportionately hired and/or promoted." (Compl.
¶ 55, ECF No. 10.) Generally, the Plaintiffs assert that
"VDGIF engaged in a practice of initially hiring largely
or wholly from [white] candidates and promoting largely or
wholly from among [white] employees already employed by
VDGIF." (Id.) Specifically, VDGIF agents
advised the Plaintiffs that VDGIF did not hire minority
candidates for officer positions in order to avoid potential
confrontations with white citizens.
VDGIF did hire a minority applicant, VDGIF would treat that
minority employee differently and subject him or her "to
discriminatory treatment, practices, and harassment that
employees of other races did not experience."
(Id. ¶ 57.) On one occasion during Ms.
Carter's employment, a white employee intentionally
failed to properly record a disciplinary action against
another white employee. When Ms. Carter noted the failure,
the white employee directed her to "throw away" the
record. (Id. ¶ 58.) Ms. Carter reported the
incident to VDGIF management, but the obstructing white
employee never underwent investigation or received a
separate occasion when Ms. Carter worked at VDGIF, a
different white employee made a major error related to a
program through which past Commonwealth of Virginia employees
could "purchase" previous years of service for the
benefit of their retirement plans. (Id. ¶ 59.)
When Ms. Carter discovered the mistake, she advised both Dr.
Conyers and VDGIF Deputy Director Gary Martel, who is
Caucasian, in order to remedy the situation. However,
"[u]pon information and belief, " VDGIF never
counseled or disciplined that employee. (Id.
¶¶ 59, 99.)
time not identified in the Complaint, VDGIF implemented a
policy that required applicants for a VDGIF officer position
"to be able to swim at the time of application."
(Id. ¶ 60.) Ms. Easter commented during a VDGIF
recruitment meeting in 2014 that such a requirement, applied
without an opportunity for job training, could have a
disparate effect on minority applicants. Ms. Carter and Dr.
Conyers observed Ms. Easter being ostracized and berated for
her comment. VDGIF ignored Ms. Easter's suggestion.
King-Robinson, meanwhile, observed that when white coworkers
made errors, the person who learned of the error typically
met with them informally to resolve the issue. On the other
hand, when a black employee made an error, management would
be immediately notified in writing.
early 2014, VDGIF hired two additional black employees, one
permanent and one temporary. In January of 2014, VDGIF hired
Ms. Easter into a full-time position and then, in July 2014,
hired Val Thompson on a temporary, part-time, basis. Dr.
Conyers observed that white employees became very upset at
the growing number of black employees. Ms. Carter heard one
white employee state something similar to: "I can't
believe it, can Joice [Conyers] make this office any
blacker!?" (Id. ¶ 64.) Another Caucasian
employee stated that she and other VDGIF employees felt that
Dr. Conyers intended "to turn the agency
'black.'" (Id. ¶ 65.)
"[T]ension and discrimination had increased
markedly" by September 2014. (Id. ¶
66.) Some white employees even staged a boycott and
refused to perform assigned work, including "assisting
in the processing and hiring of 28 new VDGIF Officers."
(Id.) These employees walked out without requesting
leave. Ms. Carter and Ms. Easter ultimately had to assume the
boycotting employees' work.
Carter and Ms. Easter then complained to Dr. Conyers, who
addressed their issues with VDGIF Executive Director Robert
Duncan, who is Caucasian. Director Duncan, however, did not
satisfactorily address those issues and "additional
retaliation ensued." (Id. ¶ 71.)
"Upon information and belief, " VDGIF did not
discipline or reprimand the boycotting employees. (Id.
Vonne Carter, Administrative Office Specialist/Human
January 2010, VDGIF hired Ms. Carter in its Richmond,
Virginia, office as an "Administrative Office Specialist
3." (Compl. ¶ 18.) At the time of her termination
in October 2014, Ms. Carter had the title of "Human
Resources Analyst 2." (Id.) Ms. Carter's
initial supervisor, Colonel Dabney Watts, a white male,
"often cursed and screamed at Ms. Carter, kicked office
furniture, and stated repeatedly 'I own you, ' or
words to the same effect." (Id. ¶ 26.)
Colonel Watts did not treat white employees in the same
manner as he treated Ms. Carter. The Complaint alleges,
"[u]pon information and belief, " that Colonel
Watts treated Ms. Carter in that manner because of her race.
(Id. ¶ 27.) After an employee other than Ms.
Carter reported Colonel Watts's behavior to Dr. Conyers
(herself a VDGIF supervisor), an internal investigation
ensued, and VDGIF placed Ms. Carter on leave. Colonel Watts
received only a brief write-up regarding his inappropriate
behavior in a performance evaluation. He received no formal
discipline and immediately returned to his former position.
transferred Ms. Carter to the human resources department.
VDGIF did not do so at Ms. Carter's request, but to
punish her. Caucasian employees then "routinely
ostracized Ms. Carter, " which affected Ms. Carter's
ability to perform her duties. (Id. ¶ 31.)
White employees declined to speak to Ms. Carter and denied
her proper job training. A Caucasian employee and Ms. Carter
initially were slated to work opposite days while sharing an
office space. The Caucasian employee, however, expressed
distaste at having to share an office chair, computer, and
files with Ms. Carter. The Caucasian employee even stated to
Dr. Conyers, "If she [Vonne Carter] is coming down here,
I am leaving. I will not share this space!"
(Id. ¶ 32.) "Upon information and belief,
" the white employee's distaste stemmed from Ms.
Carter's race, as they had not met. (Id.) On the
day Ms. Carter began working, the white employee handed her
letter of resignation to Dr. Conyers. Upon information and
belief, VDGIF rehired that employee shortly after Ms.
Carter's termination and paid the white employee an
hourly wage much higher than Ms. Carter, even though Ms.
Carter had assumed additional job duties while serving in the
ultimately assigned Ms. Carter to the Law Department of VDGIF
as a liaison. Colonel Henry, Colonel Watts's successor,
similarly treated Ms. Carter in a disrespectful manner.
Colonel Henry regularly cursed at Ms. Carter and referred to
her as "gal" in a derogatory fashion. Colonel Henry
did not treat white employees in the same way. On information
and belief, VDGIF treated Ms. Carter differently because of
her race. In spite of the challenges faced by Ms. Carter in
her role as liaison, she excelled, and Dr. Conyers routinely
gave her additional responsibilities.
terminated Ms. Carter's employment on or around October
22, 2014, two days prior to the completion of her
twelve-month probationary period. VDGIF, through its agent,
Deputy Director Martel, advised Ms. Carter that the screening
for her position was not completed properly, she was not
"minimally qualified" for her job duties, and she
had "work performance issues." (Id. ¶
98.) Ms. Carter alleges that she "was an excellent
worker" and "well qualified for her position."
(Id. ¶ 99.) Prior to her termination, she had
received no warning or reprimand, or faced any disciplinary
actions. In fact, Deputy Director Martel could not provide
her with any examples of her alleged work performance issues.
Armed officers escorted Ms. Carter from the VDGIF office.
Following termination of her employment, Ms. Carter filed a
Dismissal Grievance with VDGIF. VDGIF, however, denied her
access to the grievance process.
Joice Convers, Human Resources Director
December 2009, VDGIF hired Dr. Conyers as "Human
Resources Director." (Compl. ¶ 19.) Dr. Conyers
held that title until her termination in January 2015. During
her employment at VDGIF, Dr. Conyers was the only female
director and also the only minority director.
employees frequently referred to Dr. Conyers as a "blue
card, " which intended to convey that VDGIF hired her
because of her race and not her job qualifications.
(Id. ¶ 39.) At a human resources retreat, some
white employees balked at diversity training and became upset
when asked to participate. Caucasian employees, including
Mereme Martin and Cleva Pierce, specifically challenged Dr.
Conyers's authority and refused to perform assigned
tasks. Moreover, Ms. Carter and Ms. Easter routinely observed
white employees speaking about Dr. Conyers in derogatory
routinely excluded Dr. Conyers from or did not advise her
about important management meetings, including critical
budget meetings, which negatively affected Dr. Converses
ability to perform her work duties. All other VDGIF directors
participated in such meetings. VDGIF also paid Dr. Conyers
less than similarly situated, non-African-American directors
at VDGIF. VDGIF paid Dr. Conyers the least of any director
because of her race. Dr. Conyers's temporary replacement,
a white male, received, on information and belief, a higher
salary than Dr. Conyers.
Conyers raised her concerns about employee insubordination,
her exclusion from important management communications and
meetings, and disparate pay, with... Director Duncan and with
Human Resources Consultant/VDHRM employee Debbie Howe, both
of whom identify their race as [Caucasian]."
(Id. ¶ 46.) In March 2014, Dr. Conyers
specifically discussed with Director Duncan certain errors
she discovered regarding the computer system as well as the
insubordination by two white VDGIF human resources employees:
Cleva Pierce and Mereme Martin. Dr. Conyers advised Director
Duncan that Ms. Pierce and Ms. Martin refused to properly
perform legitimate tasks assigned to them by Dr. Conyers,
that they often challenged Dr. Conyers's authority, and
that they acted disrespectfully. Dr. Conyers also submitted a
salary study to Director Duncan, illustrating her disparate
pay. Director Duncan ultimately referred Dr. Conyers to Ms.
Howe, and in April 2014, Dr. Conyers expressed the same
concerns to Ms. Howe. Ms. Howe advised Dr. Conyers that she
was "good friends" with Ms. Pierce and Director
Duncan and, for that reason, she declined to consider Dr.
Conyers's concerns. (Id. ¶ 49.)
in April 2014, Dr. Conyers revisited the issue with Director
Duncan and advised him about her concerns regarding the lack
of diversity in the office. Director Duncan abruptly ended
the conversation without addressing the issue. Then, in May
2014, Ms. Howe advised Dr. Conyers that Howe was
"auditing" the VDGIF department. (Id.
¶ 51.) Ms. Howe ignored Dr. Conyers's earlier
reports of insubordination in the office and, instead,
launched an investigation, which the Complaint alleges had
"the sole purpose of discrediting Dr. Conyers and other
Black VDGIF human resources employees, including the other
Plaintiffs." (Id.) On information and belief,
Director Duncan and others opened the "audit" or
"investigation" as a "farce."
(Id.) On or around July 8, 2014, Ms. Howe submitted
her "audit" or "investigation" results,
which led to the eventual termination of Dr. Conyers and Ms.
Complaint alleges, on information and belief, that a number
of white employees filed false complaints against Dr. Conyers
and the other Plaintiffs because of their race. Following
those complaints, in September 2014, VDGIF placed Dr. Conyers
on leave pending the investigation. At the time she was
placed on leave, armed officers escorted Dr. Conyers from the
employee Kim Lettner, Special Assistant to the Director, who
is Caucasian, completed an investigation which faulted Dr.
Conyers for the hiring of minority employees Ms. Carter, Ms.
Easter, Ms. Thompson, and Estella Randolph. Dr. Conyers
submitted a written response refuting the accusations.
Notwithstanding Dr. Conyers's response, VDGIF issued her
a "Group III Written Notice" and terminated her
employment in January 2015. (Id. ¶ 96.) VDGIF
asserted failure to perform job duties and/or failing to
follow VDGIF policies as the basis for Dr. Conyers's
Carol King-Robinson, Boating Services Technician
hired Ms. King-Robinson in November 2013 as a "Boating
Services Technician." (Compl. ¶ 21.) VDGIF promoted
Ms. King-Robinson but later demoted her, and Ms.
King-Robinson currently holds the title of "Boating
Services Technician." (Id.)
2014, Ms. King-Robinson, then working as a Boating Services
Technician, applied for a promotion to the position of
Licensing Specialist. Upon information and belief, VDGIF
human resource professional Ms. Easter served on the
selection panel for that position along with two white males,
Ryan Brown and Tom Guess. All three individuals determined
that Ms. King-Robinson was the most qualified candidate, and
VDGIF offered her the promotion over two white candidates.
Upon information and belief, several white employees opposed
that decision because of Ms. King-Robinson's race. Those
employees believed that VDGIF was hiring and promoting
"too many" black individuals. (Id. ¶
75.) Ms. King-Robinson accepted the position of Licensing
Specialist, which increased her responsibilities and her pay.
Ms. King-Robinson commenced her new position in August 2014,
she encountered increased animosity from white coworkers.
VDGIF provided Ms. King-Robinson with a dirty office filled
with trash and debris. Ms. King-Robinson alleges, on
information and belief, that a part-time worker had been
utilizing that office space and had attempted to clean it
prior to departure. But VDGIF agents advised her that
"if [Ms. King-Robinson] wanted the office cleaned, she
would have to clean it herself." (Id. ¶
77.) A Caucasian human resources employee informed Ms.
King-Robinson's coworkers that Ms. King-Robinson was
"not a real supervisor, " and Ms.
King-Robinson's coworkers shunned her. (Id.) At
odds with the general practice of the office in place before
Ms. King-Robinson's arrival and reestablished after her
departure, Ms. King-Robinson's coworkers shut their
office doors after her promotion because of Ms.
December 2014, Deputy Director Martel expressed frustration
regarding Ms. King-Robinson's promotion, and VDGIF
advised Ms. King-Robinson of her demotion to Boating Services
Technician. VDGIF agents Dorita Adams, Guess, Linda Thorp,
and Lee Walker proffered, as the basis for the demotion, that
the promotion contravened VDGIF rules and that VDGIF intended
to eliminate the duties that Ms. King-Robinson performed. In
February 2015, George Gardner, EEO representative at VDHRM,
informed Ms. King-Robinson that her "promotion was
eliminated due to the total and complete incompetence of the
former Human Resources staff." (Id. ¶ 81.)
EEO Representative Gardner stated that Ms. King-Robinson
"had not suffered a loss" due to the demotion
because she could revert to her "former position."
(Id.) VDGIF informed Ms. King-Robinson that she had
to accept a corresponding reduction in pay or lose her
employment altogether. "Upon information and belief, the
proffered reasons for the demotion were pretextual, and the
demotion was due to Ms. King-Robinson's race."
(Id. ¶ 83.) VGDIF reassigned Ms.
King-Robinson's job duties to various white co-workers,
who received either temporary or permanent pay increases.
the demotion, Ms. King-Robinson contacted Ms. Howe and EEO
Representative Gardner to complain. Ms. Howe and Mr. Gardner
discouraged her from filing a complaint or internal
grievance. Ms. King-Robinson nonetheless filed an internal
grievance that remains pending. Ms. King-Robinson
"performed her duties well at all times and met or
exceeded VDGIF's legitimate business expectations."
(Id. ¶ 86.)
Charlene Easter, Human Resources Analyst
hired Ms. Easter in January 2014 and continues to employ her
as a "Human Resources Analyst II/Human Resources
Business Analyst." (Compl. ¶ 20.) VDGIF
"ostracized and retaliated against [Ms. Easter] for
questioning the racial fairness of the swimming requirement
for officers." (Id. ¶ 103.) Ms. Carter and
Dr. Conyers observed Ms. Easter being ostracized for her
comment. In 2014, Ms. Easter "openly assisted Ms. Carter
in a grievance process" for which no redress was
received. (Id. ¶ 105.) Due to resulting stress,
Ms. Easter's physician placed her on short term
disability leave from October 6, 2014, through April 2, 2015.
Ms. Easter also has been prescribed medications for
depression, anxiety, and sleep deprivation.
in 2014 and prior to her medical leave, VDGIF permitted Ms.
Easter to work a flexible schedule and to occasionally
telecommute. Ms. Easter had requested the flex schedule
because she is a single parent. When Ms. Easter returned to
work after her medical leave, VDGIF denied any return to the
flex schedule. When Ms. Easter again requested the flex
schedule and the opportunity to temporarily telecommute,
VDGIF denied her request. Ms. Easter then observed that all
human resources staff files had been relocated to Deputy
Director Martel's office. As a result, VDGIF now required
that Ms. Easter request specific permission from Deputy
Director Martel each time she needed to access a file, while,
on information and belief, white employees maintained access.
Also on Ms. Easter's return, her coworkers eavesdropped
on her telephone communications via an interoffice group
telephone system. On one occasion, a coworker accidentally
forwarded an email detailing the eavesdropping to Ms. Easter
herself instead of Bill Brenzovich, the intended recipient.
her return to work, Ms. Easter had been approved for training
and professional development activities by Dr. Conyers. Linda
Thorp, however, refused to register Ms. Easter for any
training or professional development opportunities. Ms.
Easter observed that VDGIF advised white coworkers of
training opportunities and encouraged them to attend. Ms.
Easter complained about such disparate treatment and VDGIF
ultimately approved her to attend a training program in
for the safety of her job, Ms. Easter applied for open
positions posted through VDHRM at other agencies within the
Commonwealth of Virginia. She estimates that she has applied
for more than two dozen positions between 2014 and August
2016, when Plaintiffs filed the Complaint. Ms. Easter alleges
that, even though she has been overly qualified for many of
those positions, she has rarely received interviews. Ms.
Easter believes that she has been "barred" or
"blackballed" by VDGIF and VDHRM because of her
race, her complaints, or her participation in the complaints
and investigations of other minority employees at VDGIF.
(Id. ¶ 114.)
Plaintiffs bring the four following causes of action:
Count I: Claim of Title VII Racial Discrimination against
VDGIF and VDHRM
Count II: Claim of Title VII Hostile Work Environment against
VDGIF and VDHRM
Count III: Claim of Title VII Retaliation against VDGIF and
Count IV: Claim of § 1983 Racial Discrimination, Hostile
Work Environment and Retaliation against Duncan in his
total, with three claims by four plaintiffs against two
defendants and one claim by four plaintiffs against another
defendant, the Plaintiffs assert 28 claims. In the Partial Motion
to Dismiss, the Defendants accuse the Plaintiffs of filing
"a 'shotgun* style ... pleading to jumble facts
together and confuse legal claims.'" (Mem. Supp.
Partial Mot. Dismiss 2, ECF No. 7.) With this
characterization as the backdrop to their argument, the
Defendants seek to dismiss 26 of the Plaintiffs' 28
claims. The Defendants do not seek dismissal of Dr.
Conyers's Title VII claim for retaliation against VDGIF
or Ms. King-Robinson's Title VII claim for racial
discrimination against VDGIF.
Plaintiffs, in response, defend their litigation style,
noting that "[t]here exist four narratives in this
matter, but only one story." (Opp'n Partial Mot.
Dismiss 2, ECF No. 10.) The Plaintiffs further portray the
Complaint as being "divided into multiple sections for
ease of reference and organization of information."
(Id. at 3.)
Motion to Disqualify, the Defendants seek to disqualify the
Plaintiffs' counsel because Dr. Conyers served as
VDGIF's Human Resources Director at all times relevant to
Ms. Carter's, Ms. Easter's, and Ms.
King-Robinson's claims. According to the Defendants, Dr.
Conyers "will be required to testify and/or
defend [V]DGIF's employment practices to refute
allegations pled by Carter, Easter[, ] and
King-Robinson." (Mem. Supp. Mot. Disqualify 2, 5, ECF
No. 15 (emphasis added).) Thus, the Defendants posit, a
conflict of interest cannot be avoided. The Plaintiffs
counter that "[n]o conflict of interest exists" and
that "even if [one] did, " the Plaintiffs have
waived it. (Opp'n to Mot. Disqualify 2, ECF No. 17.)
Analysis: Motion to Disqualify
the Motion to Disqualify, if granted, would significantly
impact this litigation moving forward, the Court addresses it
first. The Defendants argue that the Court must disqualify
the Plaintiffs' counsel from representing all four
plaintiffs because each plaintiff has a non-waivable conflict
of interest. The Defendants specifically assert that these
non-waivable conflicts arise out of the representation of Dr.
Conyers. The Defendants submit: "[T]he hostile work
environment claims asserted by Carter, Easter, and
King-Robinson will rise or fall on the actions taken by
Conyers as HR Director for [V]DGIF." (Mem. Supp. Mot.
a conflict of interest could arise under the
peculiar circumstances of this case, such a conflict can be
waived and has been properly waived in writing here.
Critically, no plaintiff in this matter has made any
assertion or claim against any other plaintiff. Moreover, the
Plaintiffs' counsel has indicated that he will "be
able to provide competent and diligent representation to each
affected client." (Opp'n to Mot. Disqualify 6.) No
law prohibits joint representation. For the reasons that
follow, the Court will deny the Motion to Disqualify.
Motion to Disqualify Standard
a motion seeking to disqualify counsel can be used improperly
"for purely strategic purposes, " the moving party
"bears a 'high standard of proof.'"
Tessier v. Plastic Surgery Specialists, Inc., 731
F.Supp. 724, 729 (E.D. Va. 1990) (quoting Gov't of
India v. Cook Indus. Inc., 569 F.2d 737, 739 (2d Cir.
1978)). Indeed, the disqualification of counsel is a
"drastic" measure that should be free from
"overly-mechanical adherence to disciplinary canons at
the expense of litigants' rights freely to choose their
counsel." Shaffer v. Farm Fresh, Inc., 966 F.2d
142, 146 (4th Cir. 1992).
while in a close case, doubts are to be resolved in favor of
disqualification, United States v. Clarkson, 567
F.2d 270, 273 n.3 (4th Cir. 1977), disqualification may not
rest on "mere speculation" of a theoretical
occurrence, Shaffer, 966 F.2d at 145, but rather
"some stronger objective indicator... than simple
judicial intuition is needed to warrant the drastic step of
disqualification of counsel, " id. at 145-46.
The disqualification of a party's chosen counsel is a
serious matter that should be undertaken only upon a showing
by the moving party that an "actual or likely"
conflict of interest exists, ...