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Carter v. Virginia Department of Game and Inland Fisheries

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

September 29, 2017

VONNE HARRISON CARTER, et al., Plaintiffs,


          M. Hannah Lauck United States District Judge.

         This 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).

         The 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.

         I. Factual and Procedural Background

         A. Summary of Allegations in the Complaint[1]

         Each of 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.

         The Court will outline the Plaintiffs' general allegations, followed by the allegations as they pertain to each plaintiff individually.

         1. General Discriminatory Hiring Standards and Practices at VDGIF

         The 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.

         When 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 reprimand.

         On 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, "[2] VDGIF never counseled or disciplined that employee. (Id. ¶¶ 59, 99.)

         At a 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.

         Ms. 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.

         In 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.

         Ms. 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. ¶ 72.)

         2. Vonne Carter, Administrative Office Specialist/Human Resources Analyst

         In 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.

         VDGIF 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 same position.

         VDGIF 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.

         VDGIF 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.

         3. Joice Convers, Human Resources Director

         In 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.

         White 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.[3] (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 ways.

         VDGIF 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.

         "Dr. 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.)

         Later 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. Carter.

         The 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 building.

         VDGIF 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 termination.

         4. Carol King-Robinson, Boating Services Technician

         VDGIF 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.)

         In July 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.

         When 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. King-Robinson's race.

         In 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.

         After 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.)

         5. Charlene Easter, Human Resources Analyst

         VDGIF 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.

         Beginning 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.

         Before 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 September 2015.

         Fearing 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.)

         B. Procedural History

         All 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 VDHRM
Count IV: Claim of § 1983 Racial Discrimination, Hostile Work Environment and Retaliation against Duncan in his Individual Capacity

         In total, with three claims by four plaintiffs against two defendants and one claim by four plaintiffs against another defendant, the Plaintiffs assert 28 claims.[4] 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.

         The 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.)

         In the 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.)

         II. Analysis: Motion to Disqualify

         Because 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. Disqualify 4.)

         Although 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.

         A. Motion to Disqualify Standard

         Because 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).

         Thus, 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, ...

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