United States District Court, W.D. Virginia, Harrisonburg Division
KENNETH D. LIGGINS, Plaintiff,
G.A. & F.C. WAGMAN, INC., et al., Defendants.
Elizabeth K. Dillon United States District Judge
matter is currently before the court on defendants'
motion to dismiss plaintiff's first amended
complaint under Federal Rule of Civil Procedure
12(b)(6). (Dkt. No. 43.) The matter has been fully briefed
and argued before the court. The court finds that plaintiff
Kenneth Liggins, who is proceeding pro se, has
failed to state a claim upon which relief can be granted and
accordingly will grant defendants' motion to dismiss. The
court, however, will also grant Liggins's motion to amend
his amended complaint, in part. (Dkt. No. 51.)
brought this suit to recover money he alleges he is due for
various claims arising out of his employment with Wagman
Heavy Civil. He worked for Wagman from September 15,
2015, to October 2, 2017, as a “labor, ”
“finisher, ” and “labor foreman.”
Liggins alleges claims of racial discrimination, retaliation,
and hostile work environment under Title VII of the Civil
Rights Act of 1964 and claims of conspiracy and fraud against
Wagman. He seeks compensatory and punitive damages. (Compl.,
Dkt. No. 7.) In his brief in opposition to the motion to
dismiss and at the hearing, Liggins relied on allegations not
made in his complaint. When that was called to his attention,
he moved to amend his complaint.
Standard of Review
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads 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, and establishes “more
than a sheer possibility that a defendant has acted
unlawfully.” Id. Unadorned allegations of
wrongdoing, “formulaic recitation[s]” of the
elements of a claim, and “‘naked assertions'
devoid of ‘further factual enhancement'” are
insufficient to state viable claims. Id. (quoting
Twombly, 550 U.S. at 555-57).
first claim, which is labeled discrimination, Liggins alleges
that defendants Rich Turner and Corey Gaye,  employees at
Wagman, retaliated against him when he told them that three
of his coworkers were using drugs on the job-site. Liggins
contends that after he informed Turner and Gaye of this, one
of his coworkers put cocaine in Liggins's water and told
Turner, resulting in Turner and Gaye demanding Liggins take a
drug test. He then states that he was sent to Valley Health
Urgent Care with one Caucasian coworker and one Hispanic
coworker to take drug tests. (Compl. 2-4.) The nurse at
Valley Health told Liggins that his sample needed to be sent
out for further evaluation, but Liggins believes that this
never occurred. Liggins also took issue with the need to
further evaluate his sample because the same evaluation was
not requested for the samples from his coworkers. When his
sample came back positive for cocaine, Liggins said that he
had not used drugs and was told to take another test, which
came back negative. (Specimen Result Certificate, Dkt. No.
7-2; Compl. 4.) Liggins was thereafter terminated by Turner
and Gaye. He argues that his termination was retaliation by
Turner and Gaye because it was easier for them to terminate
one rather than three employees and reveal “the high
level of drug use on the job, ” and because he informed
them that his coworkers were using drugs at work. Liggins
contends that this retaliation was due to his race, black.
(Compl. 4-5, 10.)
claim fails for two reasons. First, Title VII claims may only
be brought against employers, not individuals. 42 U.S.C.
§ 2000e-2(a)(1). Accordingly, Liggins cannot assert a
Title VII discrimination claim against Turner and Gaye in
their supervisory roles. Lissau v. S. Food Serv.,
Inc., 159 F.3d 177, 180 (4th Cir. 1998)
(“[S]upervisors are not liable in their individual
capacities for Title VII violations.”).
Liggins has not sufficiently alleged that defendants'
unlawful discrimination was due to his race. He has not pled
facts that show direct evidence of racial discrimination by
Turner or Gaye; rather, he recounts the circumstances that
led to his termination-his reporting of coworkers, taking a
drug test with coworkers, and initial positive result from
his first drug test-and simply states that his termination
was because of his race. See Warch v. Ohio Ins. Co.,
435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Va.
Union Univ., 193 F.3d 219, 232 (4th Cir. 1999)
(“Direct evidence must be ‘evidence of conduct or
statements that both reflect directly the alleged
discriminatory attitude and that bear directly on the
contested employment decision.'”)). Liggins also
has not alleged a prima facie case of racial discrimination,
which is the applicable standard in the absence of direct
evidence of discrimination, and requires that he establish:
“(1) membership in a protected class; (2) satisfactory
job performance; (3) adverse employment action; and (4)
different treatment from similarly situated employees outside
the protected class.” Scott v. Health Net Fed.
Servs., 463 Fed.Appx. 206, 208 (4th Cir. 2012). He has
not shown satisfactory job performance because his drug test
result was positive for cocaine. (Specimen Result
Certificate, Dkt. No. 7-2.) He also has not shown different
treatment from similarly situated employees outside the
protected class; notably, he has not alleged that his
coworkers who took drug tests on the same day also received
positive results or that only his test was sent for further
evaluation because of his race. Thus, Liggins's Title VII
discrimination claim fails.
conspiracy claim, Liggins posits that
defendants conspired to “file a false and
misleading report” on his first drug test and that his
sample was never sent to a lab. (Compl. 5.) He further
alleges that Gaye requested Wagman and Valley Health to
conspire to produce a false positive drug test “to
carry out Wagman ...