Spellman v. School Board of City of Chesapeake

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard United States Magistrate Judge

         On December 11, 2017, Plaintiff Dannetta G. Spellman ("Plaintiff') instituted this cause of action by filing a two count Complaint, asserting that her former employer, the City of Chesapeake, Virginia Public Schools and the School Board of the City of Chesapeake, Virginia had discriminated against her in her former employ as a public school teacher. ECF No. 1. On January 30, 2018, pursuant to a joint stipulation between the parties, the claims against Defendant City of Chesapeake, Virginia Public Schools were dismissed with prejudice, leaving the School Board of the City of Chesapeake, Virginia as the sole Defendant in this action. See ECF No. 9 ("Joint Stipulation").

         I. INTRODUCTION

         Before the Court is Defendant School Board of the City of Chesapeake, Virginia's ("Defendant") Motion to Dismiss Count I of the Complaint and accompanying Memorandum in Support, filed on February 27, 2018. ECF Nos. 11-12. The Motion asserts that the Court lacks subject matter jurisdiction to consider Count I under Fed.R.Civ.P. 12(b)(1), and, in the alternative, that Count I fails to state a claim upon which relief can be granted under Rule 12(b)(6). Although Plaintiff originally failed to timely respond, the Court permitted Plaintiff to file her Opposition (ECF No. 13) and directed the Clerk to treat the same as timely filed. See ECF Nos. 14, 18. Defendant timely replied on March 20, 2018. ECF No. 16. This matter was referred to the undersigned United States Magistrate Judge ("the undersigned") for a report and recommendation pursuant to a Referral Order from the Chief United States District Judge. ECF No. 17. See also 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); E.D. Va. Local Civ. R. 72. Notwithstanding Plaintiffs request for a hearing, ECF No. 15, the undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). For the foregoing reasons, the undersigned RECOMMENDS that Defendant's Motion to Dismiss Count I, ECF No. 11, be GRANTED.

         II. STANDARDS OF REVIEW

         Defendant has moved to dismiss the claims made in Count I pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 12, passim.

         A. Rule 12(b)(1)

         A defendant may contest a court's subject matter jurisdiction in two ways under Fed.R.Civ.P. 12(b)(1). "First, a defendant may attack the complaint on its face, when the complaint 'fails to allege facts upon which subject matter jurisdiction can be based.'" Wynne v. I.C. Sys,, Inc., 124 F.Supp.3d 734, 738-39 (E.D. Va. 2015) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). In that event, the well-pleaded facts asserted in the complaint are assumed to be true and are construed in the light most favorable to the plaintiff. Wynne, 124 F.Supp. at 739; Adams, 697 F.2d at 1219. When considering a motion to dismiss under this prong of Rule 12(b)(1), the Court may consider evidence central to the pleadings or attached thereto without converting the motion into one for summary judgment. See, e.g., Jeffrey J. Nelson & Assocs., Inc. v. LePore, No. 4:1 lcv75, 2012 WL 2673242, at *4 (E.D. Va. July 5, 2012) ("A court 'may consider official public records, documents central to a plaintiffs claim, and documents sufficiently referred to in the complaint, so long as the authenticity of these documents is not disputed, ' without converting the motion into a motion for summary judgment.") (citation omitted).

         Alternatively, a defendant may challenge the existence of subject matter jurisdiction in fact, apart from anything alleged in the pleadings, and may proffer evidence outside the pleadings without converting the motion into one for summary judgment. Int'l Longshoremen's Ass'n, S.S. Clerks Local 1624, AFL-CIO v. Virginia Int'l Terminals, Inc., 914 F.Supp. 1335, 1338 (E.D. Va. 1996); Adams, 697 F.2d at 1219; see also Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) ("In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment."). Regardless of whether the defendant challenges subject matter jurisdiction based on an attack on the complaint on its face, or an attack on the existence of subject matter jurisdiction apart from the pleadings, "the burden is on plaintiffs, as the party asserting jurisdiction, to prove that federal jurisdiction is proper." Int'l Longshoremen's Ass'n, 914 F.Supp. at 1338 (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams 697 F.2d at 1219). Moreover, plaintiffs must prove that subject matter jurisdiction exists by a preponderance of the evidence. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009).

         B. Rule 12fb¶6)

         A motion filed under Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint. Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir. 2006). In considering this motion, the Court must assume that the facts alleged are true, and view them in the light most favorable to the plaintiff. Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd P'ship, 213 F.3d 175, 180 (4th Cir. 2000); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Federal Rule of Civil Procedure 8(a) requires that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). To be sufficient under Rule 8, the pleading must meet two basic requirements: it must contain sufficient factual allegations and those allegations must be plausible. Adiscov, LLC v. Autonomy Corp., 762 F.Supp.2d 826, 829 (E.D. Va. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). See also McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) ("The Supreme Court has accordingly held that Rule 8(a)(2) requires that 'a complaint . . . contain[ ] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face' in the sense that the complaint's factual allegations must allow a 'court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'") (quoting Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); citing Coleman, 626 F.3d at 191 (finding a complaint inadequate because its allegations "fail[ed] to establish a plausible basis for believing . . . that race was the true basis for [the adverse employment action]")) (italics in original).

         First, sufficient factual allegations include "more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do;" rather, "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Second, to "nudge[] their claims across the line from conceivable to plausible, " id. at 570, "plaintiff[s] [must] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " Iqbal, 556 U.S. at 678. Indeed, to achieve factual plausibility, plaintiffs must allege more than "naked assertions... without some further factual enhancement." Twombly, 550 U.S. at 557. Otherwise, the complaint will "stop[] short of the line between possibility and plausibility of entitlement to relief." Id.

         Consequently, when considering a motion to dismiss, only those allegations which are factually plausible are "entitled to the assumption of truth." Iqbal, 556 U.S. at 679 (noting that legal conclusions must be supported by factual allegations). "At bottom, determining whether a complaint states on its face a plausible claim for relief and therefore can survive a Rule 12(b)(6) motion will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citations omitted).

         III. FACTUAL AND PROCEDURAL BACKGROUND

         As it must, the Court assumes the following facts alleged in the Complaint are true. On or about February 28, 2017, Plaintiffs employment as a public school teacher in the City of Chesapeake, Virginia was officially terminated by Defendant. Plaintiff was initially hired in February 1984 and she served as an educator for thirty-two years as both a classroom teacher and as a continuing contract teacher until her termination, primarily at Hickory Elementary School, located in Chesapeake, Virginia. ECF No. 1 at 8, ¶¶ 18-19. See also ECF No. 1, attach. 1 at 1. In the 2013-2014 school year, Kimberly Pinello ("Pinello"), a white female, became principal of Hickory Elementary School and Plaintiffs supervisor. ECF No. 1 at 8, ¶ 20. Prior to Pinello's administration, Plaintiff had received satisfactory annual performance evaluations and was never subjected to disciplinary actions. Sometime after Pinello's arrival, Pinello placed Plaintiff on a performance improvement plan ("PIP"). On or about May 31, 2016, Pinello recommended Plaintiffs dismissal to Defendant on the grounds that Plaintiff was incapable of competent job performance. At the time of Plaintiff s proposed termination, Plaintiff was 58 years old and one of only two black educators at Hickory Elementary School, out of a total of approximately thirty educators. ECF No. 1 at 9-10, ¶ 25; ECF No. 1, attach. 1 at 2. Ultimately, Defendant accepted Pinello's recommendation, and upheld the termination of Plaintiff s employment on February 28, 2017. ECF No. 1 at 10, ¶27.

         On March 16, 2017, Plaintiff filed a Charge of Discrimination with the Virginia EEOC. ECF No. 1, attach. 1 (Charge of Discrimination). In this Charge, Plaintiff alleged that she had been subject to race and age discrimination in her termination and also in the time leading up to her termination in violation of Title VII of the Civil Rights Act of 1964. See ECF No. 1, attach. 1 at 1 (checking "race" and "age" boxes when asked to indicate the basis of the alleged discrimination). The EEOC issued a Notice of Right to Sue on September 13, 2017, which Plaintiff received by mail on September 15, 2017. ECF No. 1 at 7, ¶ 16; ECF No. 1, attach. 2 (Notice of Right to Sue).

         On December 11, 2017, Plaintiff filed a two count Complaint in this Court. ECF No. 1. The undersigned notes that the Complaint, and especially Count I is not a model of clarity. As the Court interprets Count I, Plaintiff asserts mixed claims of race and gender discrimination pursuant to multiple statutes. In the interest of clarity, the undersigned finds that Count I asserts the following four claims: (1) race discrimination pursuant to Title VII; (2) gender discrimination pursuant to Title VII; (3) race discrimination under 42 U.S.C. § 1981 ("§ 1981"); and (4) gender discrimination under § 1981. See ECF No. 1 at 10-11, ¶¶ 28-33. Count II asserts a claim for age discrimination that is not subject to the instant Motion to Dismiss.^[1]

         On February 27, 2018, Defendant filed a Motion to Dismiss Count I of the Complaint and a Memorandum of Law in Support. ECF Nos. 11-12. Therein, Defendant argued that Count I should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for several reasons. First, Defendant contends that this Court lacks subject matter jurisdiction over Plaintiffs purported Title VII gender claim because she failed to exhaust her administrative remedies prior to filing suit. Second, Defendant contends that Plaintiff failed to properly assert a claim under 42 U.S.C. § 1983 ("§ 1983") to vindicate rights protected by § 1981 allegedly violated by a state actor. Third, Defendant argues that no cognizable gender claim exists under § 1981 and/or § 1983. Finally, Defendant contends Plaintiff failed to allege facts to state a claim for racial discrimination under either Title VII or § 1981 and/or § 1983. ECF No. 12, passim.

         In Plaintiffs Opposition, Plaintiff contends that because her gender claim "is reasonably related to the overall tenor of the claims filed with the EEOC, this Court has jurisdiction over such claims." ECF No. 13 at 5. With respect to Defendant's second point, Plaintiff does not concede this argument, but "respectfully requests leave to file an amended complaint to include a 42 U.S.C. Section 1983 claim." ECF No. 13 at 6. Plaintiffs Opposition does not appear to address Defendant's third point regarding the lack of an available gender claim under § 1981 and/or § 1983. See ECF No. 13, passim. With respect to the final point, Plaintiff devotes half a page to stating and restating the standard of review, (requiring the Court to view the allegations in a light most favorable to non-moving party) and articulating the conclusion that "[t]he facts that Spellman are sufficient [sic] to overcome a motion for dismissal, " without actually identifying which facts specifically establish a prima facie race discrimination claim. See ECF No. 13 at 7. Ultimately, Plaintiff contends that if Defendant's Motion to Dismiss is granted the dismissal should be without prejudice, to allow Plaintiff the opportunity to file an Amended Complaint and thereby "eliminate any basis for defendant's motion to dismiss Count I". ECF No. 13 at 8.

         Defendant's Reply essentially reiterates the arguments made in its original Memorandum of Law in Support of its Motion to Dismiss, with the additional argument that Plaintiff should not be granted leave to amend her Complaint. See ECF No. 16, passim. Defendant argues that Plaintiff offered no suggestion as to how such amendment would remedy the pleading deficiencies as to the merits of her race claims, nor did she suggest how any amendment would cure the deficiencies regarding subject matter jurisdiction over the gender discrimination claim. See ECF No. 16 at 6.

         IV. DISCUSSION

         A. Title VII Race and Gender Claims

         Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). Specifically, an employer may not discriminate against an individual with respect to her "compensation, terms, conditions, or privileges of employment." Westry v. N. Carolina AT & T State Univ., 286 F.Supp.2d 597, 600 (M.D. N.C. 2003), ajfd, 94 Fed.Appx. 184 (4th Cir. 2004) (quoting 42 U.S.C. § 2000e-2(a)). In the Fourth Circuit, it is well-established that "[b]efore a plaintiff has standing to file suit under Title VII, he must exhaust his administrative remedies by filing a charge with the EEOC." Bryant v. BellAtl. Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002) (citing Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000)). "The EEOC charge defines the scope of the plaintiffs right to institute a civil suit." Id.

         Thus, under the current statutory framework, "Title VII gives initial enforcement responsibility to the EEOC. An individual alleging discrimination in violation of Title VII must first file an administrative charge with the EEOC within a certain time of the alleged unlawful act." Chacko v. Patwcent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (citing 42 U.S.C. § 2000e-5(e)(1)). A charge is acceptable only if it is "sufficiently precise to identify the parties, and to describe generally the action or practices complained of." Chacko, 429 F.3d at 508 (quoting 29 C.F.R. § 1601.12(b) (2004)). After the charge has been filed, the EEOC investigates the alleged unlawful acts and provides notice of the charges to the employer within ten days. Chacko, 429 F.3d at 508-09 (citing 42 U.S.C. § 2000e-5(b)). If the EEOC finds reasonable cause to believe the allegations are true, it "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Id. Irrespective of the outcome of the EEOC investigation, "[a]n individual cannot bring suit until he has exhausted the administrative process." Chacko, 429 F.3d at 509 (citing 42 U.S.C. § 2000e-5(b), (f)(1); Bryant v. BellAtl Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002); 29 C.F.R. § 1601.28).

         Although "[a]n administrative charge of discrimination does not strictly limit a Title VII suit which may follow ... the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Bryant v. BellAtl. Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002) (quoting Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). Thus, "if the factual allegations in the administrative charge are reasonably related to the factual allegations in the formal litigation, the connection between the charge and the claim is sufficient." Chacko v. Patuxent Inst., 429 F.3d 505, 509-10 (4th Cir. 2005) (citing Smith v. First Union Nat'l Bank, 202 F.3d 234, 247-48 (4th Cir. 2000) (plaintiff exhausted administrative remedies when both formal complaint and administrative charge alleged she was retaliated against by management because she complained about supervisor's sexual harassment); Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981); Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) ("The crucial element of a charge of discrimination is the factual statement contained therein.") (internal quotation marks omitted); Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001) ("[T]he EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals.") (internal quotation marks omitted)) (alteration in original).

         In Count I, Plaintiff contends that she suffered racial and gender discrimination in violation of Title VII. ECF No. 1 at 10-11, ¶¶ 28-33. In the interest of clarity, the undersigned ...