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Michael v. Virginia Commonwealth University

United States District Court, E.D. Virginia, Richmond Division

July 31, 2018


v.
VIRGINIA COMMONWEALTH UNIVERSITY, Defendant.

          OPINION

          John A. Gibney, Jr. United States District Judge.

         Audrey Michael, a 51-year-old African-American woman, began working as a senior compliance and policy analyst for Virginia Commonwealth University ("VCU") in March, 2013. In a 2015 meeting, Michael's supervisor made several derogatory comments about African-American women. Michael complained about the comments, and experienced retaliation as a result. Michael resigned on October 27, 2015.

         Michael now brings an eleven-count complaint against VCU for violations of Title VII of the Civil Rights Act of 1964, the Virginia Human Rights Act ("VHRA"), and the Age Discrimination in Employment Act ("ADEA"). VCU has moved to dismiss the complaint. The Court grants VCU's motion to dismiss as to all claims, but gives Michael leave to amend her Title VII claims.

         To summarize the Court's holdings, Michael's Title VII discrimination claim fails because she does not allege an adverse employment action. She does not plead severe and pervasive conduct to establish a Title VII hostile work environment claim. Her Title VII retaliation claim fails because, even under the relaxed standard for retaliation claims, she does not allege sufficiently adverse action to support a claim. Her VHRA claims fail because the statute does not even apply to VCU. Finally, her ADEA claim cannot go forward because VCU enjoys immunity from claims under the ADEA.

         I. FACTS ALLEGED IN COMPLAINT[1]

         Michael worked for VCU as a senior compliance and policy analyst from March, 2013, through October, 2015. In a July 14, 2015 meeting, her supervisor, Jaqueline Kniska, made three derogatory comments about African-American females. First, Kniska called Dr. Quincy Byrdsong's name "so ghetto." (Compl. at ¶ 10.) Dr. Byrdsong is an African-American woman. Second, Kniska asked who was responsible for "hiring these people," referring to two African-American women. (Id.) Finally, Kniska complained that Dr. Wanda Mitchell, an African-American woman, had stated that VCU did not employ enough black employees. Kniska asked what would happen if she made comments similar to Dr. Mitchell's about female employees.

         On July 15, Michael spoke to her ombudsman about the comments, and on July 22, she made an official complaint to the Director of Audit and Compliance Services. After she complained, Kniska assigned Michael excessive tasks, found fault in all of her work, and communicated with her almost solely via e-mail. Michael observed that Kniska did not limit her communications with Caucasian employees to mostly e-mail. Additionally, Kniska denied Michael the opportunity to attend a conference at Cornell University, but VCU did not deny Caucasian employees the opportunity to attend conferences around the same time.

         On October 13, Michael requested annual leave, but Kniska ignored the request. On October 21, Michael received her annual review, which Kniska had completed. Michael's review included misstatements about her performance. Michael claims her review penalized her "for obtaining a certification within the first year of employment," but did not similarly penalize Caucasian employees.[2] (Compl. at % 23.) Michael immediately filed a grievance about her evaluation, and on October 26, she complained to the Director of Audit and Compliance about the hostile work environment and discrimination. Michael submitted her resignation on October 27, 2015. Michael claims that VCU should have provided medical coverage from her last day, November 11, through December 11, but did not. Since leaving VCU, Michael has learned that VCU's system lists her employment as "terminated" rather than "resigned." (Compl. at ¶ 32.)

         II. DISCUSSION[3]

Michael's complaint alleges eleven counts: (I) Title VII violation for race discrimination; (II) Title VII violation for hostile work environment based on race; (III) Title VII retaliation for her July 15, 2015 complaint; (IV) Title VII retaliation for her July 22, 2015 complaint; (V) Title VII retaliation for her October 21, 2015 complaint; (VI) VHRA violation for race discrimination; (VII) VHRA violation for hostile work environment; (VIII) VHRA retaliation for her July 15, 2015 complaint; (IX) VHRA retaliation for her July 22, 2015 complaint; (X) VHRA retaliation for her October 21, 2015 complaint; and (XI) ADEA violation.

         A. Title VII (Counts I- V)

         1. Race Discrimination (Count I)

         Under Title VII, an employer may not refuse to hire, discharge, or otherwise discriminate against an individual regarding compensation, terms, conditions, or privileges of employment, due to the individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Without direct evidence of racial discrimination, a plaintiff alleging discrimination under Title VII must establish:

(1) that she was a member of a protected racial, ethnic, or other group; (2) that she experienced an adverse employment action; (3) that at the time of the adverse employment action, she was performing her job at a level that met her employer's legitimate expectations; and (4) that the position remained open or was filled by a similarly qualified applicant outside of the plaintiffs protected class, or that ...

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