Harsell v. Virginia Motor Lodges, Inc.

          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 ...