United States District Court, E.D. Virginia, Norfolk Division
DAJNNE11A U. 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 ("Defendant") as the sole
Defendant in this action. See ECF No. 9 ("Joint
Stipulation"). On February 27, 2018, Defendant filed its
first Motion to Dismiss and Memorandum in Support, seeking
dismissal of the first count of the Complaint. ECF No. 11-12.
The Chief United States District Judge referred the matter to
the undersigned United States Magistrate Judge ("the
undersigned") for a Report and Recommendation. ECF No.
17. On April 5, 2018, the undersigned entered a Report and
Recommendation that recommended granting Defendant's
Motion to Dismiss, but allowing Plaintiff the opportunity to
amend her Complaint. ECF No. 19. The recommended disposition
was accepted in full by the Chief United States District
Judge, and Plaintiff was given until May 21, 2018, to file an
Amended Complaint. ECF No. 20.
21, 2018, Plaintiff timely filed an Amended Complaint
containing three counts: (1) racial discrimination in
violation of Title VII; (2) racial discrimination in
violation of 42 U.S.C. ¶¶ 1981, 1983, and due
process rights under the Fourth and Fourteenth Amendments of
the United States Constitution; and (3) age discrimination in
violation of the Age Discrimination in Employment Act
("ADEA"). ECF No. 21. On June 4, 2018, Defendant
filed a Motion to Dismiss Plaintiffs Amended Complaint (and
Memorandum in Support) as to all counts of the Amended
Complaint. ECF Nos. 22-23.
the Court is Defendant School Board of the City of
Chesapeake, Virginia's Motion to Dismiss for Failure to
State a Claim and accompanying Memorandum in Support, filed
on June 4, 2018. ECF Nos. 22-23. The Motion asserts that the
Amended Complaint fails to state a claim upon which relief
can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). Plaintiff timely filed both an Opposition and an
Amended Opposition thereto, ECF Nos. 24, 27, to which
Defendant filed a Reply, ECF No. 29. On July 2, 2018, this
matter was again referred to the undersigned for a report and
recommendation pursuant to a Referral Order from the Chief
United States District Judge. ECF No. 31; 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 on Defendant's Motion to Dismiss Plaintiff
Spellman's Amended Complaint, ECF No. 26, 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 the Amended Complaint, ECF
No. 22, be GRANTED IN PART and
DENIED IN PART.
STANDARD OF REVIEW
has moved to dismiss the Amended Complaint's three counts
pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No.
motion filed under Federal Rule of Civil Procedure 12(b)(6)
challenges the legal sufficiency of a complaint. Jordan
v. Alt. Res. 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. E. 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: (1) it must
contain sufficient factual allegations and (2) 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. Md. Dep't of Tramp, 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.'")
(emphasis in original) (alternations in original) (quoting
Iqbal, 556 U.S. at 678); see also Coleman v. Md.
Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010),
aff'd sub nom. Coleman v. Court of Appeals of
Md., 566 U.S. 30 (2012)) (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]").
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) (internal citations omitted).
FACTUAL AND PROCEDURAL BACKGROUND
must, the undersigned assumes the following facts alleged in
the Amended Complaint, ECF No. 21, are true. These facts
include that on or about February 28, 2017, Plaintiffs
employment as a public school teacher in the City of
Chesapeake, Virginia was officially terminated by Defendant.
Id. at 13, ¶ 29. Plaintiff was initially hired
in February 1984 and served as an educator
for thirty-two (32) years as both a classroom teacher and as
a continuing contract teacher until her termination,
primarily at Hickory Elementary School, located in
Chesapeake, Virginia. Id. at 7, ¶¶ 18-19;
see also Id., attach. 1 at 1. In the 2013-2014
school year, Kimberly Pinello ("Pinello"), a white
female, became principal of Hickory Elementary School and
Plaintiffs direct supervisor. Id. at 8, ¶ 20.
Prior to Pinello's administration, Plaintiff had received
satisfactory annual performance evaluations and was never
subjected to disciplinary actions. Id. at 7-8,
¶ 20. Sometime after Pinello's arrival, Pinello
placed Plaintiff on a performance improvement plan
("PIP"). Id. at 8, ¶ 21. On or about
May 31, 2016, Pinello recommended Plaintiffs dismissal to
Defendant on the grounds that Plaintiff was incapable of
competent job performance. Id. at 12-13, ¶ 25.
At the time of Plaintiffs proposed termination, Plaintiff was
60 years old and one of only two black educators at Hickory
Elementary School, out of a total of approximately thirty
(30) educators. Id. at 2, ¶ 2; Id. at
13, ¶ 26. The other black educator was thirty-three (33)
years old. Id. at 13, ¶ 26. Ultimately,
Defendant accepted Pinello's recommendation, and upheld
the termination of Plaintiffs employment on February 28,
2017. Id. at 10, ¶ 27.
March 16, 2017, Plaintiff filed a Charge of Discrimination
with the Virginia EEOC. Id., attach. 1. 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 id, 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. Id., attach. 2; see also
Id. at 6, ¶ 16.
December 11, 2017, Plaintiff filed a two count Complaint in
this Court. ECF No. 1. The Court interpreted Count I as
asserting 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 Id. at 10-11, ¶¶
28-33. Count II asserted a claim for age discrimination.
See Id. at 12-13.
February 27, 2018, Defendant filed a Motion to Dismiss Count
I of the Complaint and an accompanying memorandum. 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
contended 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 argued Plaintiff failed to properly
assert a claim under 42 U.S.C. § 1983 to vindicate
rights protected by 42 U.S.C. § 1981 allegedly violated
by a state actor. Third, Defendant argued no cognizable
gender claim exists under § 1981 and/or § 1983.
Finally, Defendant contended 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. Ultimately, the undersigned issued a Report
and Recommendation that recommended granting Defendant's
Motion to Dismiss, but allowing Plaintiff to amend her
Complaint. ECF No. 19. On May 21, 2018, Plaintiff timely
filed her Amended Complaint alleging three claims: (1) race
discrimination in violation of Title VII; (2) race
discrimination in violation of § 1981 and § 1983
and due process rights; and (3) age discrimination. ECF No.
21 at 14-19, ¶¶ 30-48.
4, 2018, Defendant filed a Motion to Dismiss Amended
Complaint and an accompanying memorandum. ECF Nos. 22-23.
Therein, Defendant makes several arguments. First, Defendant
contends that Plaintiff failed to properly allege the
requisite elements for a Title VII claim. ECF No. 23 at 4-10.
Second, Defendant argues that Plaintiff fails to state a
claim under of § 1981 and § 1983 because she failed
to identify a discriminatory custom or policy of the School
Board that resulted in an adverse action against her.
Id. at 10-11. Defendant also contends that Plaintiff
fails to sufficiently plead a due process violation, of
either procedural or substantive due process. Id. at
11-14. With respect to Plaintiffs claim that she was
subjected to age discrimination, Defendant argues that
Plaintiff failed to appropriately allege that her age was the
"but for" cause of her termination. Id. at
14-15. According to Defendant, even if Plaintiff could
substantiate either a race discrimination claim (under Title
VII) or age discrimination claim, any allegedly
discriminatory conduct of Pinello cannot be imputed to
Defendant School Board because Pinello is not a supervisor
within the meaning of Title VII or the ADEA. Id. at
15-20. Specifically, Defendant contends that no
"cat's paw" theory of liability exists to make
Defendant vicariously liable for Pinello's actions.
Id. at 19; see Hill v. Lockheed Martin
Logs., 354 F.3d 277, 290 (4th Cir. 2004) (en banc),
abrogated in part on other grounds, Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338 (2013) ("When a
formal decisionmaker acts merely as a cat's paw for or
rubber-stamps a decision, report, or recommendation actually
made by a subordinate, it is not inconsistent to say that the
subordinate is the actual decisionmaker or the one
principally responsible for the contested employment
decision, so long as he otherwise falls within the parameters
of the discrimination statute's definition of an employer
or agent of the employer.").
25, 2018, Plaintiff timely filed her Opposition. ECF No.
In filing her Opposition, Plaintiff also attached the
following exhibits: three (3) affidavits, a copy of the
Complaint she filed in Chesapeake Circuit Court for pay she
did not receive during the pendency of her grievance process,
and a letter from the Clerk of the School Board to her
attorney advising that Plaintiffs request for another hearing
was denied, and that Defendant had accepted the
recommendation of the Hearing Officer to terminate her
employment. See ECF No. 28, attachs. 1-5.
29, 2018, Defendant timely filed its Reply. ECF No. 29.
Therein, Defendant first notes that Plaintiffs Opposition to
the Motion to Dismiss improperly seeks to supplement her
pleadings through her inclusion of affidavits, her state
court complaint, and a letter from Defendant, and observes
that it would be improper for the Court to consider the same.
Id. at 2-3 (citing Rossman v. Lazarus, No.
1:08-cv-316, 2008 WL 4181195, at *7 (E.D. Va. Sept. 3, 2008)
("[I]t is 'axiomatic that a complaint may not be
amended by the briefs in opposition to a motion to
dismiss.'") (quoting Katz v. Odin, Feldman &
Pittleman, P.C., 332 F.Supp.2d 909, 917 n.9 (E.D. Va.
2004)); see also Fed. R. Civ. P. 12(d) ("All
parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.");
Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618
(4th Cir. 1999) (permitting consideration of extraneous
material if such materials are "integral to and
explicitly relied on in the complaint"); Gasner v.
Dinwiddle, 162 F.R.D. 280, 282 (E.D. Va. 1995)
(permitting district court to take judicial notice of public
documents, such as court records, even when the documents are
neither referenced by nor integral to plaintiffs
even if these exhibits are considered, Defendant contends
that the Amended Complaint failed to allege that Defendant
discriminated against Plaintiff on the basis of race or age.
First, Defendant contends that Plaintiffs placement on the
PIP and Pinello's allegedly discriminatory acts are not
adverse employment actions, and furthermore, Plaintiff failed
to identify similarly situated comparators. According to
Defendant, even if Plaintiff was able to identify adverse
employment actions and similarly situated comparators,
Plaintiffs claims fail because she failed to allege that
Defendant was motivated by race or age when it made the
decision to accept the Hearing Officer's recommendation
to terminate Plaintiffs employment. Notably, the Amended
Complaint does not allege that Defendant was even aware of
the allegedly discriminatory acts perpetuated by Pinello, and
therefore Plaintiffs attempts to hold Defendant vicariously
liable for Pinello's actions are fruitless. ECF No. 29 at
6. Pursuant to Va. Code § 22.1-313, Pinello had no
independent authority to hire or fire Plaintiff, and
therefore Pinello cannot be considered Plaintiffs supervisor
under Title VII and/or the ADEA. See Va. Code §
22.1-313 ("The school board shall retain exclusive final
authority over matters concerning employment and supervision
of its personnel, including dismissals and
suspensions."). In addressing the "cat's
paw" argument asserted by Plaintiffs Opposition,
Defendant observes the dearth of factual basis in the Amended
Complaint to support Plaintiffs contention that Defendant
"rubber-stamped" Pinello's recommendation.
Rather, Defendant notes that pursuant to state law, Pinello
made a recommendation to the Superintendent that Plaintiff be
terminated, the Superintendent reviewed the matter and made a
recommendation, Plaintiff received a hearing before a Hearing
Officer where she was given the opportunity to present
evidence, the Hearing Officer also recommended that
Plaintiffs employment be terminated, and ultimately,
Defendant accepted the Hearing Officer's recommendation.
ECF No. 29 at 7. Additionally, Defendant argues that
Plaintiff has failed to state a claim for a violation of
§ 1981 and/or § 1983 because she failed to identify
a discriminatory policy or custom of Defendant. Defendant
also contends that Plaintiff has failed to state a claim for
violation of her procedural due process because although she
enjoyed a property interest in her continuing contract status
as a teacher, she was afforded all the procedural due process
owed to her: oral or written notice of the charges against
her, an explanation of Defendant's evidence, and an
opportunity to participate and present a defense.
Id. at 9 (citing Holland v. Rimmeri, 25
F.3d 1251, 1258 (4th Cir. 1994)). Finally, Defendant argues
that Plaintiff fails to state a claim for violation of
substantive due process, and points to controlling case law
from this Division specifically holding that "'[a
plaintiffs] interest in public employment, uninterrupted by
disciplinary suspensions, is not a fundamental interest
meriting substantive due process protection.'"
Id. at 11 (quoting Willis v. City of Va.
Beach, 90 F.Supp.3d 597, 615 (E.D. Va. 2015)).
Title VII Race Claim
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.C AT & T State Univ., 286 F.Supp.2d
597, 600 (M.D. N.C. 2003), aff'd, 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. Bell
Atlantic Md., 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
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." Id. (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. Id. 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."
Id. at 509 (citing 42 U.S.C. § 2000e-5(b),
(f)(1); Bryant, 288 F.3d at 132; 29 C.F.R. §
"[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, 288 F.3d at 132 (quoting Chisholm v.
U.S. 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, 429 F.3d at
509 (citing Smith, 202 F.3d at 247-48 (indicating
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, 665
F.2d at 491; Freeman v. Oakland Unified Sck 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)
(internal citation omitted); Kersting ...