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Spellman v. The School Board of City of Chesapeake

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

October 15, 2018



          Lawrence R. Leonard, United States Magistrate Judge

         On 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.

         On May 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.


         Before 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.


         Defendant has moved to dismiss the Amended Complaint's three counts pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 23, passim.

         A. Rule 12(b)(6)

         A 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]").

         First, 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.

         Consequently, 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).


         As it 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.

         On 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.

         On 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.

         On 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.

         On June 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"[1] 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.").

         On June 25, 2018, Plaintiff timely filed her Opposition. ECF No. 28.[2] 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.

         On June 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 complaint).[3]

         However, 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.[4] 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)).


         A. Title VII Race Claim

         Title 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 suit." Id.

         Thus, 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. § 1601.28).

         Although "[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 ...

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