United States District Court, E.D. Virginia, Norfolk Division
DANNETTA G. SPELLMAN, Plaintiff,
THE SCHOOL BOARD OF THE CITY OF CHESAPEAKE, VIRGINIA, Defendant.
REPORT AND RECOMMENDATION
Lawrence R. Leonard United States Magistrate Judge
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
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.
STANDARDS OF REVIEW
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.
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).
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).
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).
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.
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).
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
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.
Title VII Race and Gender Claims
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.
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).
"[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).
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