United States District Court, E.D. Virginia, Richmond Division
A. Gibney Jr. United States Distritt Judge
Forgus works at the Defense Logistics Agency
("DLA"), an agency of the Department of Defense, as
a Business Process Analyst. The Court ordered Forgus to amend
her initial complaint, instructing her to include a clear,
brief statement of facts, a separately titled section
identifying each legal claim and the facts that support it,
as well as the relief sought, a list of defendants, and any
documents she wished the Court to consider. After filing her
amended complaint, Forgus moved for leave to amend again,
which the Court granted. She filed a second amended
complaint, containing three claims. She alleges (1) disparate
treatment based on race and sex in violation of Title VII;
(2) retaliation in violation of Title VII; and (3) hostile
second amended complaint does not state a claim for relief.
She fails to identify the adverse employment action required
for her disparate treatment and retaliation claims, and she
does not allege sufficient facts to meet the high bar for
hostile work environment claims.
the Court grants the defendant's motion to dismiss the
second amended complaint.
alleges numerous facts spanning several years. The Court,
however, may only consider actions or claims contained in the
underlying Equal Employment Opportunity Commission
("EEOC") claim. King v. Seaboard Coast Line R.
Co., 538 F.2d 581, 583 (4th Cir. 1976). Thus, the Court
will not consider any actions before Forgus began working for
DLA in 2009, or after March 23, 2012, when she filed her
formal EEOC complaint. The Court has summarized the pertinent
a black woman, began working at DLA in December 2009. DLA
consists of several directorates, including the Business
Process Support Directorate, which includes the Order
Fulfillment Division. The Order Fulfillment Division has two
branches: Order Management and Inventory Management. Forgus
works as a Business Process Analyst, a position which exists
in both the Order Management and Inventory Management
branches. She works exclusively within the Order Management
describes several instances in which she made complaints or
requests, only to make more complaints or requests once her
supervisors acquiesced. These include complaints about
seating arrangements, assigned alternates,  trainings,
informal office meetings, and, in January 2011, her
discomfort with the office environment. Similarly, when
Forgus complained her workload was too light, her supervisor
assigned her to an important project, and then Forgus
requested a reduction in her workload. This cycle repeated
also describes her many attempts to transfer to the Inventory
Management branch. On January 6, 2011, DLA posted a vacancy
announcement for a Business Process Analyst, and Forgus
applied. Although the selecting official put her on a list of
qualified candidates, that official said she would not
consider Forgus because the vacancy described the position
she already held. Her supervisor, Naomi Wilcox, told Forgus
she could submit a written request if she wished to transfer
to the Inventory Management branch. On January 31, 2011,
Forgus emailed Wilcox stating she wanted to work within both
branches and broaden the scope of her current job. In
February 2011, Forgus had two meetings with her superiors in
which she requested a transfer, and voiced concerns about her
workload being too light. Wilcox again told Forgus she would
have to submit a written request for the specific transfer,
rather than utilize the application process. Nevertheless,
Forgus told Wilcox to treat her application for Business
Process Analyst as a written request. At one of these
meetings, the selecting official said, "Well anyway,
you're not getting the position, " referring to the
vacancy to which Forgus applied, a comment which Forgus
describes as "caustic." (Second Am. Compl., at 11.)
Two black men from outside the division were eventually
chosen as Business Process Analysts, one in Order Management,
and one in Inventory Management.
October 2011, Wilcox assigned Forgus to a high priority
project, which Forgus now argues was an attempt to force her
out of her position by giving her too much work. On November
1, 2011, Forgus contacted an EEOC counselor. The next day,
Wilcox, unaware of Forgus' EEOC contact, attempted to
meet another of Forgus' requests by allowing her to split
her time between her normal workload and the special project.
When Forgus expressed concern about being fired for failure
to keep up with her normal workload, Wilcox assured her she
would not be removed. As far as the record shows, Forgus
still holds the same position at DLA.
March 23, 2012, Forgus filed a formal discrimination
complaint with the EEOC. She requested a hearing before an
Administrative Judge, and on January 8, 2014, the judge
disposed of her allegations regarding discrimination,
including hostile work environment and retaliation. On
February 26, 2014, she filed an appeal with the EEOC, which
affirmed the Administrative Judge's findings. Forgus then
brought this suit.
STANDARD OF REVIEW
12(b)(6) motion to dismiss gauges the sufficiency of a
complaint without resolving any factual discrepancies,
testing the merits of the claim, or judging the applicability
of any defenses raised by the non-moving party.
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992). In considering the motion, a court must
accept all factual allegations in the complaint as true and
draw all reasonable inferences in favor of the plaintiff.
Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City
of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
"The tenet that a court must accept as true all of the
allegations contained in a complaint[, however, ] is
inapplicable to legal conclusions." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule
12(b)(6) motion to dismiss, a complaint must state facts
that, when accepted as true, "state a claim to relief
that is plausible on its face." Id. (quoting
Bell Ml. Corp. v. Twombly, 550 U.S. 544, 570
Swierkiewicz v. Sorema, the Supreme Court held that
a plaintiff alleging employment discrimination must follow
only "the ordinary rules for assessing the sufficiency
of a complaint." 534 U.S. 506, 511 (2002). Although
Iqbal and Twombly "did alter the
criteria for assessing the sufficiency of a complaint, "
the Fourth Circuit has held that "those cases did not
overrule Swierkiewicz's holding that a plaintiff
need not plead the evidentiary standard" to
survive a motion to dismiss under Rule 12(b)(6) in an
employment discrimination case. McCleary-Evans v. Md.
Dept. of Transp, State Highway Admin.,780 F.3d 582,
586-87 (4th Cir. 2015) (emphasis in ...