United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
Plaintiff
Greta Harsell brings this employment discrimination and
retaliation action against her former employer, Virginia
Motor Lodges, Inc. (VML), d/b/a Super 8. Harsell
alleges that VML demoted her because of her age, in violation
of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§§ 621-634, and the Virginia Human Rights Act
(VHRA), Virginia Code §§ 2.2-3900-3903.
Additionally, Harsell alleges that VML also violated the ADEA
by subsequently terminating her employment in retaliation for
her filing a complaint with the Equal Employment Opportunity
Commission (EEOC).
Before
the court is defendant's motion to dismiss the VHRA claim
in Count II for failure to state a claim under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. The matter has been
fully briefed, and the court heard oral argument on February
21, 2018. For the reasons set forth below, the court will
grant defendant's motion to dismiss Count II.
I.
BACKGROUND[1]
Harsell
began working for VML in February 2011 as a part-time front
desk clerk. VML was aware that Harsell also worked for Motel
6 for several months in 2011, but no one stated that the
overlap presented a conflict of interest. In February 2012,
VML promoted Harsell to the full-time position of general
manager.
Harsell
turned 50 on July 22, 2016. On or about the same day, Natu
Patel, a director and principal officer of VML, gave Harsell
a birthday card along with a letter stating that she was
demoted from general manager to front desk clerk due to
“unsatisfactory performance.” Prior to her
demotion, Harsell had never been written up or told about any
unsatisfactory performance, and she had never had a
performance review, although she had been praised for her job
performance. After her demotion, Harsell's wages
decreased from $430 per week to approximately $136 per week
($8.50 per hour for approximately 16 hours per week). Harsell
obtained a second job at Motel 6 because of this decrease in
pay.
On
August 4, 2016, Patel promoted 39-year-old Kelly Leahy to the
position of general manager. On August 12, Harsell filed a
charge of age discrimination with the EEOC based on her
demotion. Harsell saw a letter from the EEOC arrive at the
Super 8 within weeks thereafter. She observed Patel with the
letter, and she saw a lawyer come to the Super 8 to meet with
him.
On
September 9, Leahy texted Harsell: “[S]ince you are now
working for a competitor, we cannot allow you to work here
simultaneously, as it is a conflict of interest. I am
removing you from the schedule as of today.” (Compl.
¶ 21, Dkt. No. 1.) When Harsell asked if this meant she
was terminated, Leahy replied, “Yes, per Natu. I'm
sorry.” (Id. ¶ 22.) Harsell then filed a
second charge with the EEOC, alleging that her termination
constituted retaliation in violation of the ADEA.
II. DISCUSSION
A.
Standard of Review
To
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff's allegations must
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This standard “requires the
plaintiff to articulate facts, when accepted as true, that
‘show' that the plaintiff has stated a claim
entitling him to relief, i.e., the
‘plausibility of entitlement to relief.'”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quoting Iqbal, 556 U.S. at 678). The
plausibility standard requires more than “a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678.
In
determining whether the plaintiff has met this plausibility
standard, the court must accept as true all well-pleaded
facts in the complaint and in any documents incorporated into
or attached to the complaint. Sec'y of State for
Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705
(4th Cir. 2007). Further, it must “draw[] all
reasonable factual inferences from those facts in the
plaintiff's favor, ” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), but it
“need not accept legal conclusions couched as facts or
‘unwarranted inferences, unreasonable conclusions, or
arguments, '” Wag More Dogs, LLC v.
Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008)).
B.
Consideration of Extrinsic Documents
To its
motion to dismiss, VML attaches both of plaintiff's EEOC
charges. Harsell objected to the motion to dismiss in her
briefing, though not at oral argument, on the grounds that
the two EEOC charges should not be considered at the
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