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Nzabandora v. University of Virginia

United States District Court, W.D. Virginia, Charlottesville Division

October 24, 2017

Veronique M. Nzabandora, Plaintiff,
University of Virginia, ET AL., Defendants.



         This is an employment discrimination case against the University of Virginia (“UVA”) and the Commonwealth of Virginia. I previously granted in part Defendants' motion for summary judgment, dismissing Plaintiff Veronique Nzabandora's claims for discriminatory termination under Title VII, retaliation under Title VII, and racial discrimination under 42 U.S.C. § 1981. (Dkts. 81, 82). I also held that a hostile work environment theory could proceed to trial. (Id.). Defendants then filed, with leave, an additional dispositive motion under either Rule 12(c) or Rule 56, seeking dismissal of that theory. (Dkts. 91, 92).

         That motion is now ripe. (Dkt. 103). Although styled as a summary judgment motion, Defendants' brief contains argument based on both the pleadings and the evidentiary record. The Court hence evaluates the motion against either the judgment-on-the-pleadings standard or the summary judgment standard, as the situation warrants. The parties are familiar with the facts and analysis in the prior summary judgment opinion, so they are repeated only as necessary.

         The Court holds that Plaintiff's complaint alleged facts sufficient to establish a hostile work environment theory. The evidence, though, cannot support a finding of liability against Defendants. Most centrally, Plaintiff cannot demonstrate that the supposed hostile environment is legally imputable to Defendants. Thus, the motion will be granted and the case dismissed.


         “After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A party also may raise a Rule 12(b)(6) motion to dismiss for failure to state a claim as a Rule 12(c) motion. Fed.R.Civ.P. 12(h)(2). The standard of review for either motion is the same-the Court must in each instance construe the facts and reasonable inferences of the pleadings in Plaintiff's favor. Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697, 702 (4th Cir. 2016); Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014).

         A. Rule 10(b)-Claims in Separate Counts

         Rule 10(b) states that “[i]f doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count.” (emphasis added). Defendants first contend that Plaintiff's operative complaint “failed to assert a hostile work environment claim as a separate count.” (Dkt. 93 at 7). This argument is unconvincing because a hostile work environment-although commonly referred to as a freestanding claim-is simply a theory of establishing a discrimination claim. As a result, it need not be separately pled.

         “Title VII renders it ‘an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276-77 (4th Cir. 2015) (quoting 42 U.S.C. § 2000e-2(a)(1)). In 1986, the Supreme Court recognized that this portion of Title VII-the antidiscrimination provision-could be violated when an employer fosters or permits a work environment that is hostile to a protected characteristic. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 73 (1986). But there is nothing special (insofar as pleading a “claim” is concerned) about such a scenario: It just describes a fact-pattern or theory, proof of which establishes a violation of the antidiscrimination provision in § 2000e-2(a)(1). Boyer-Liberto, 786 F.3d at 276-77 (“An employer contravenes § 2000e-2(a)(1) by, inter alia, requiring an African-American employee to work in a racially hostile environment.”). Put differently, Title VII does not include a “hostile work environment” provision, but instead an antidiscrimination provision that can be transgressed by the existence of such an environment. This is akin to the colloquial label applied to “slip-and-fall” cases: There is no such thing as a slip-and-fall claim, just negligence claims premised on slip-and-fall fact-patterns.

         Other courts agree that a hostile work environment theory is not a freestanding claim under Title VII.

The parties in this case sometimes refer to these two separate theories or grounds for Title VII liability as “claims” or “causes of action”-calling them, for example, the “hostile work environment claim” and the “tangible employment action claim.” Whether use of this language contributed to or instead exemplifies [defendant's] confusion, [defendant] is confused. It insists that the reason it did not address [plaintiff's] tangible employment action theory in its summary judgment motion is that she never pleaded that theory as a separate “claim” in her complaint.
In her pleading . . . [plaintiff] did enough. She was not required to plead tangible employment action as a separate claim, because it is not a separate claim. “Tangible employment action” is a label used to describe one of two ways sexual harassment can rise to the level of violating Title VII. In Ellerth, the Supreme Court explained that labels like “tangible employment action” and “hostile work environment” are relevant only “to the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general.” 524 U.S. at 753, 118 S.Ct. at 2265. When courts refer to the two types of conduct or fact patterns in cases, or theories of liability, as different types of “claims, ” they are using the word “claim” as a shorthand-and potentially confusing-way of describing how the plaintiff contends that the employer is vicariously liable under Title VII. When we talk about tangible employment action and hostile environment, what we are or should be talking about are the two alternative ways a plaintiff may establish a basis for the employer's vicarious liability. . . .

Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245-46 (11th Cir. 2004) ...

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