United States District Court, E.D. Virginia, Norfolk Division
JOSEPH H. ANDREANA, On behalf of himself and all others similarly situated, Plaintiff,
VIRGINIA BEACH CITY PUBLIC SCHOOLS and SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, Defendants.
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE
the Court are Defendants' Motions to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Both
parties have filed memoranda supporting their respective
positions and these matters are now ripe for judicial
determination. Having reviewed the parties' filings, the
Court finds that a hearing is not necessary. For the reasons
set forth below, Defendants' Motion to Dismiss pursuant
to Fed.R.Civ.P. 12(b)(1) is DENIED in part
and GRANTED in part; the Court has subject
matter jurisdiction over Plaintiffs disparate impact claim
(Count II), but not the pattern and practice
discrimination claim (Count III). Finally, Defendant's
motion pursuant to Fed.R.Civ.P. 12(b)(6) is
BACKGROUND & PROCEDURAL HISTORY
case alleges that the Virginia Beach Public City Schools and
the School Board of the City of Virginia Beach discriminated
against Plaintiff and others similarly situated on the basis
of age. ECF No. l. For background, Plaintiff has been an
employee of Defendant for over twenty-eight years where he
has primarily worked as a computer resources specialist
(CRS). Id. at 2. In March of 2015, Defendant
reorganized these positions and informed staff that the CRS
positions would be reduced from 104 to 84, and would become
information technology specialist (ITS) positions.
Id. All CRS employees were required to reapply and
the positions were also publicly posted. Id. at 3.
to Plaintiff, ninety-nine CRS employees applied for the ITS
positions. Id. Of the 99 CRS employees who applied,
74 were initially selected for the ITS positions, but 22 were
not selected. Id. Moreover, of the twenty-two
not selected, three retired, and four were offered ITS
positions. Id. Plaintiff contends that Defendant
offered the four ITS positions after these individuals
confronted Defendant about its discriminatory practices on
the basis of age, but that Defendant failed to provide any
remedy for the discrimination against Plaintiff and others
similarly situated. Id. As a result, Plaintiff
argues that he and other older CRS employees were forced to
retire or accept lower paying positions. Id. at 5.
contends that Defendant's screening and evaluation
process for the ITS positions discriminated against
candidates based on age and did not evaluate applicants
fairly. Id. at 3. As such, older CRS employees that
met all of the required qualifications for the positions and
had more experience in the relevant position and field were
systematically rejected in favor of younger and less
qualified applicants. Id. at 3.
August 13, 2015, Plaintiff filed a complaint with the Equal
Employment Opportunity Commission ("EEOC") for age
discrimination against Defendant. ECF No. 12. Subsequently,
on November 7, 2017, Plaintiff filed this action under the
Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 621 et seq. (West 2018), and seeks
relief from disparate treatment, disparate impact, and
pattern and practice discrimination on the basis of age. ECF
No. 1 at 2.
November 20, 2017, Plaintiff filed a Motion for Conditional
Class Certification. ECF No. 4. Defendant filed a response in
opposition and Plaintiff filed a reply. ECF Nos. 20, 24.
Additionally, Defendant filed Motions to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). ECF
Nos. 10, 16. Plaintiff filed responses in opposition and
Defendant filed replies. ECF Nos. 19, 21, 22, 25. The motions
to dismiss are now ripe for judicial determination and the
Court will address each motion.
Motion To Dismiss For Lack of Subject Matter
first moves to dismiss Plaintiffs ADEA claims for lack of
subject matter jurisdiction. In support, Defendant argues
that Plaintiff failed to exhaust administrative remedies
because he did not file an EEOC charge against the School
Board of the City of Virginia Beach, but instead named the
Virginia Beach City Public Schools ("VBCPS"). ECF
No. 10 at 4. Defendant also contends that Plaintiff only
asserted a disparate treatment claim and failed to assert a
disparate impact or pattern and practice claim. Id.
at 2. In opposition, Plaintiff contends that although he
named the VBCPS as a party in the EEOC charge, Defendant had
notice of the EEOC charge and therefore Defendant's
argument is without merit. ECF No. 19 at 9. Moreover,
Plaintiff contends that his EEOC charge encompassed both
disparate impact and pattern and practice discrimination.
Id. at 10-14. Having reviewed the parties'
arguments and evidence presented, the Court finds that it has
subject matter jurisdiction over Plaintiffs disparate impact
claim (Count II). But, the Court does not have subject matter
jurisdiction over the pattern and practice discrimination
claim (Count III), because even liberally
constructed, the Court cannot find that Plaintiff asserted
the claim in the EEOC charge.
Rule 12 (b)(1) Legal Standard
Federal Rule of Civil Procedure 12 (b)(1), a party may move
to dismiss an action for lack of subject jurisdiction.
Fed.R.Civ.P. 12 (b)(1). When a defendant asserts that the
complaint fails to allege sufficient facts to support subject
matter jurisdiction, the plaintiff bears the burden of
establishing that jurisdiction exists. Evans v. B.F.
Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In
deciding a Rule 12(b)(1) motion, "the district court is
to regard the pleadings as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment."
Id. (quoting Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991)). The court must however "view[ ] the
alleged facts in the light most favorable to the plaintiff,
similar to an evaluation pursuant to Rule 12(b)(6)."
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.
1999). Dismissal under Rule 12(b)(1) is proper "only if
the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law."
Evans, 166 F.3d at 647 (quoting Richmond,
Fredericksburg & Potomac R.R., 945 F.2d at 768).
ADEA prohibits discrimination on the basis of age and was
enacted as part of a congressional effort to eradicate
discrimination in the workplace and protect employees.
McKennon v. Nashville Banner Pub. Co.,513 U.S. 352,
357 (1995) Indeed, "the substantive, antidiscrimination
provisions of the ADEA are modeled upon prohibitions of Title
VII." Id. (citing Trans World Airlines,
Inc., v. Thurston,469 U.S. 111, 121 (1985)). Before a
civil action may be brought, the ADEA requires a plaintiff to
file a charge of discrimination with the EEOC. 29 U.S.C.A.
§ 626(d) (West 2017). As such, a "failure to
exhaust administrative remedies concerning an [ADEA] claim
deprives the federal court of subject matter jurisdiction
over the claim." Jones v. Culvert Grp. Ltd.,551 F.3d 297, 300-01 ...