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Liggins v. G.A. & F.C. Wagman, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

November 1, 2018

G.A. & F.C. WAGMAN, INC., et al., Defendants.


          Elizabeth K. Dillon United States District Judge

         This matter is currently before the court on defendants' motion to dismiss plaintiff's first amended complaint[1] 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.)

         I. BACKGROUND

         Liggins brought this suit to recover money he alleges he is due for various claims arising out of his employment with Wagman Heavy Civil.[2] 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.


         A. Standard of Review

         To 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).

         B. Liggins's Claims

         1. Discrimination

         In his first claim, which is labeled discrimination, Liggins alleges that defendants Rich Turner and Corey Gaye, [3] 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.)

         This 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.”).

         Second, 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.[4]

         2. Conspiracy

         In his conspiracy claim, Liggins posits that defendants[5] 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 ...

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