United States District Court, W.D. Virginia, Lynchburg Division
Phillip B. Faulconer, Plaintiff,
Centra Health, Inc., Defendant.
K. MOON, SENIOR UNITED STAFFS DISTRICT JUDGE
VII forbids employment discrimination because of one's
“race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2. It also bars discrimination against
anyone who opposes a practice made unlawful by, or
participates in proceedings under, “this
subchapter.” Id. § 2000e-3(a).
“This subchapter” does not include 29 U.S.C.
§ 623, which is part of the Age Discrimination in
Employment Act (“ADEA”). Indeed, the ADEA is
located in an entirely different title of the United States
Code, forbids only age discrimination, and has its own,
independent anti-retaliation provision to protect those who
oppose age discrimination. The two statutes'
anti-retaliation provisions do not cross-pollinate.
Phillip Faulconer filed this lawsuit against his former
employer, Centra, for a single count of Title VII
retaliation. In July 2016, he lodged a charge of
discrimination against Centra for age discrimination under
the ADEA. In October, Centra fired him for what it claims
were inappropriate, hostile confrontations with co-workers.
Faulconer's complaint contended that he was actually
terminated for making the age discrimination allegation in
July. Yet as explained above and below, Title VII does not
forbid retaliation for making age discrimination complaints.
The ADEA does, but there is no ADEA claim in the case. Since
Plaintiff's Title VII claim does not map onto the conduct
Title VII prohibits, summary judgment will be granted.
summary judgment stage, the Court must view the record as a
whole, taking the facts and all reasonable inferences in the
light favorable to the nonmoving party. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
Although the parties dispute certain facts giving rise to the
decision to fire Plaintiff, the facts of the case bearing on
the legal basis for the Court's decision-i.e.,
the difference between Title VII retaliation and the ADEA
retaliation-are not in dispute.
history of Plaintiff's EEOC filings is important. In July
2016, Plaintiff filed an EEOC Charge of Discrimination
(“the July Charge”). (Dkt. 62-20). The July
Charge was based on alleged age discrimination and
retaliation that occurred in January 2016. According to the
July Charge, Plaintiff was working in the “blood
bank” area and prioritized blood for a critical patient
over blood for a non-critical patient that had been requested
by nurses. Plaintiff later “was disciplined for not
providing blood for the non-critical patients when requested,
as well as for clerical errors that had been made. [He] was
removed from the blood bank and replaced with two younger
individuals.” (Id.). In the July Charge,
Plaintiff checked the boxes for “age” and
“retaliation” discrimination, and he wrote he
believed he “was disciplined and retaliated against
because of my age (62), in violation of the Age
Discrimination in Employment Act of 1967, as amended.”
(Id.). The July Charge, then, was based solely on an
August 22, 2016, the EEOC issued a right to sue letter to
Plaintiff regarding the July Charge. (Dkt. 52-6 at ECF 1-3).
Plaintiff responded to the EEOC on August 29. (Dkt. 62-22).
The overarching focus of the August 29 letter was
Plaintiff's disagreement with the EEOC's conclusion
that there had been no age discrimination. Additionally, one
paragraph implied that Plaintiff's manager Markem Smith
once gave Plaintiff a poor evaluation in retaliation for
Plaintiff's report to human resources that Smith had
inappropriately hugged female coworkers and touched one
woman's hair. (Id.). In any event, Plaintiff did
not pursue the age discrimination claims underlying the July
October 2016, Centra terminated Plaintiff for behavior it
deemed “threatening, intimidating, and
disruptive” toward coworkers during three separate but
related incidents. (Dkt. 52-6 at ECF 27). The controversy
began when Plaintiff was displeased with being assigned to
the same medical department two days in a row. According to
Centra, Plaintiff (1) aggressively confronted the
schedule-maker, invading her personal space in a
demonstrative, hostile manner; (2) followed the
schedule-maker into a manager's office and continued to
act in an intimidating fashion, and; (3) during a follow-up
meeting with the manager and an HR officer, invaded the
manager's personal space, despite requests from the HR
officer to stop. According to Plaintiff, (1) it was the
schedule-maker, not himself, who became agitated when he
broached the scheduling issue with her; (2) he remained calm
and at a safe distance during the meeting between the
schedule-maker and the manager, and; (3) his actions toward
the manager at the last meeting were meant only to illustrate
his confusion about the definition of “personal
space” and demonstrate how the manager allegedly had
herself violated Plaintiff's personal space before.
December 2016, Plaintiff filed the Charge of Discrimination
underlying this case (the “December Charge”).
(Dkt. 62-27). The December Charge contended that the
schedule-maker, rather than Plaintiff, acted in a threatening
manner and that Centra's assertion that Plaintiff acted
inappropriately was “an excuse to have [Plaintiff]
suspended and to terminate [his] employment in
retaliation for previously filing a Charge of Discrimination
with the EEOC, ” i.e., the July Charge.
(Id. (emphasis added)). The December Charge stated
Plaintiff believed he “was suspended and discharged in
retaliation for engaging in protected activity, and because
of my sex (Male), in violation of [Title VII], and age (63)
in violation of the Age Discrimination in Employment
Act.” (Id. at ECF 2). Plaintiff checked the
relevant boxes for “age, ” “sex, ”
and “retaliation” discrimination. (Id.
at 1). The EEOC issued a right to sue letter later in
December. (Dkt. 52-7 at ECF 11-13). He then filed this
operative amended complaint contains a claim only for
retaliation under Title VII. (Dkt. 17 ¶¶ 1-2, 4,
17). It alleged Plaintiff was 63 when he was fired. It
recounted the “blood bank” incident allegedly
attributed to age discrimination and which underpinned the
July Charge. (Id. ¶¶ 8-11). It further
alleged that Centra “knew that plaintiff filed the
charge of discrimination with the EEOC.” (Id.
¶ 12). And finally, the complaint mentioned the
encounter with the schedule-maker and Centra's reasons
for Plaintiff's termination, which he disputed as untrue.
(Id. ¶ 13).
argues that jurisdiction is lacking because Plaintiff failed
to exhaust his administrative remedies. Its key point is that
the July Charge-i.e., the one that allegedly
triggered Plaintiff's retaliatory firing, according to
his December Charge and his complaint-had nothing to do with
Title VII: It was an ADEA charge of discrimination. The
issue, though, is less a matter of exhaustion than of a
statutory mismatch. The Fourth Circuit has repeatedly said
that a plaintiff may raise a retaliation claim for the first
time in federal court, as long as the claim is reasonably
related to a prior charge. Hentosh v. Old Dominion
Univ., 767 F.3d 413, 416-17 (4th Cir. 2014); Jones
v. Calvert Grp., Ltd., 551 F.3d 297, 302 (4th Cir.
2009); Nealon v. Stone, 958 F.2d 584, 590 (4th Cir.
1992); Mezu v. Morgan State Univ., 367 Fed.Appx.
385, 389 (4th Cir. 2010); Lauer v. Schewel Furniture
Co., 84 Fed.Appx. 323, 328 (4th Cir. 2004);
see, e.g., Johnson v.
Portfolio Recovery Assocs., LLC, 682 F.Supp.2d 560, 573
(E.D. Va. 2009) (surveying circuit precedent). This rule
applies even when the retaliatory termination took place, as
here, after the EEOC's investigation into the underlying
charge concluded. Jones, 551 F.3d at 302-03.
lawsuit reasonably relates to his July Charge: That Centra
fired him for filing the July Charge is the theory of the
case, according to both the complaint and the December
Charge. The problem, which is one of statutory substance
rather than procedural exhaustion, is that a Title VII
retaliation claim cannot have an age discrimination charge as
its predicate protected activity. As explained at the outset
of this opinion, the two statutes protect different traits,
and their respective anti-retaliation provisions mirror those
differences. “Title VII and ADEA claims arise from
completely distinct statutory schemes.” Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 963
(4th Cir. 1996). As such, each statute's anti-retaliation
provision protects conduct related to its own scope, not that
of the other.
chose not to include age within discrimination forbidden by
Title VII.” Gen. Dynamics Land Sys., Inc. v.
Cline, 540 U.S. 581, 586 (2004); see Kremer v.
Chemical Const. Corp., 456 U.S. 461, 465 n.4 (1982)
(noting that “age discrimination . . . is not covered
by Title VII”). “Title VII and the ADEA do not
provide overlapping remedies against age discrimination,
” as “the statutes were enacted for different
purposes.” Grant v. City of N. Charleston Hous.
Auth., No. CIVA 2:06-3242-CWH, 2008 WL 4372980, at *3-4
(D.S.C. Sept. 22, 2008), aff'd, 365 Fed.Appx.
460 (4th Cir. 2010). Here, “plaintiff's claim is
not cognizable under Title VII, because Title VII does not
forbid employment discrimination based on an individual's
age or provide a remedy for such discrimination. Instead, the
plaintiff's claim should have been brought pursuant to
the ADEA, which has a retaliation provision that prohibits
the alleged behavior”-e.g., firing an employee
for opposing age discrimination. Id. at *4.
courts have reached this conclusion when a plaintiff tries to
advance a Title VII retaliation claim based on an
employer's adverse response to his ADEA-protected
conduct. E.g., Lennon v. Rubin, 166 F.3d 6,
8 (1st Cir. 1999) (rejecting “challenge to the district
court's dismissal of [plaintiff's] Title VII claims
for retaliation based on age discrimination complaints,
” as the argument “founders on the plain language
of the statute”); Bornholdt v. Brady, 869 F.2d
57, 62 (2d Cir. 1989) (observing as to retaliation claim that
“Title VII plainly does not apply, since that statute
governs complaints relating only to discrimination on the
basis of race, color, religion, sex, or national origin, and
not discrimination on the basis of age”); Triola v.
ASRC Mgmt. Servs., 487 Fed.Appx. 611, 613 (2d Cir. 2012)
(“Triola's retaliation claim based on his prior age
discrimination complaint was not cognizable under Title
VII.”); Piper v. Veneman, 183 Fed.Appx. 407,
408 n.2 (5th Cir. 2006); Cyr v. Perry, 301 F.Supp.2d
527, 535 (E.D. Va. 2004) (“Title VII does not expressly
authorize retaliation claims in response to protected
activity opposing age discrimination because it only makes it
unlawful for an employer to discriminate against an employee
because he has opposed any practice made an unlawful
employment practice by this subchapter . . . [T]here
is no authority that supports the claim that plaintiff may
pursue an age discrimination claim under Title VII; clearly
plaintiff cannot do so.”) (emphasis in
this litigation, Plaintiff premised his Title VII retaliation
claim on his July ADEA Charge. The claim thus cannot succeed.
To avoid this result, Plaintiff cited on brief and especially
at oral argument to his August 29 letter to the EEOC. (Dkt.
62 at 11 (citing dkt. 62-22)). Recall that in the letter
(sent after the EEOC issued a right-to-sue letter stemming
from the July Charge), Plaintiff complained in passing about
Markem Smith's alleged inappropriate contact with female
employees. Plaintiff now ...