United States District Court, E.D. Virginia, Alexandria Division
M. HILTON, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion for
Partial Dismissal of Plaintiff's Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
is a self-described biracial, part Caucasian, part African
American, light-skinned man. Plaintiff worked for Defendant
Washington Gas, in relevant part, from the summer of 2013 to
July 25, 2018. During that time, Plaintiff worked as a crew
mechanic, crew leader in-training, and crew leader. Plaintiff
also twice participated in the CLDP program with successful
completion on the second attempt.
in the summer of 2013 to fall of the same year, Plaintiff
began to experience harsh treatment from his supervisor in
the CLDP program. Plaintiff's supervisor yelled at
Plaintiff, gave Plaintiff a very harsh performance review,
and stated his dislike for "half-breeds" though
ostensibly discussing canines. Plaintiff's supervisor
also disciplined him more harshly than other employees
outside of Plaintiff's protected classes. For example,
Plaintiff was disciplined for a car accident that occurred
while on the job for which Plaintiff was not at fault; no
other employee was disciplined unless they were at-fault.
Plaintiff also received a five-day suspension for hitting a
water line that was not properly marked; after a grievance
process, this discipline was removed from Plaintiff's
record and he received backpay.
was then removed from the CLDP program and his wages were
reduced. Plaintiff's next supervisor began also treated
him differently than other employees outside Plaintiff s
protected classes. Plaintiff believed that his new supervisor
also knew about the grievances Plaintiff had filed while in
the CLDP program. During his time under this second
supervisor, Plaintiff received a ten-day suspension for
failure to immediately report a malfunctioning garage door,
though through a grievance process this accident was
determined to be unavoidable and that Plaintiff had reported
it to his supervisor who instructed him not to worry about
it. Further, Plaintiff sought to work overtime hours, but
this second supervisor selected a white employee in violation
of the union contract over Plaintiff.
met with Defendant Washington Gas's Human Resources
department to discuss the harassment he had been facing.
After this meeting, 'Plaintiff did not see anything done
by Human Resources to ameliorate the harassment.
filed his first charge against Defendant with the Equal
Employment Opportunity Commission (EEOC) in March 2014
claiming race and color discrimination and retaliation
between the dates of May 1, 2013 and November 20, 2013.
Plaintiff self-filed this charge and did not select the box
for "Continuing Action" which typically refers to
harassment as opposed to a single act of discrimination.
Plaintiff's allegations in the charge, however, do
mention harassment. The EEOC opened an investigation and
continued to examine evidence until issuing a probable cause
determination on April 20, 2018. The EEOC then provided
Plaintiff with a Right-to-Sue letter on May 9, 2018.
the period of the investigation, Plaintiff continued to
suffer harsh treatment at the hands of yet more supervisors.
From November 2016 to his eventual termination, Plaintiff was
under the supervision of Defendants Samuel and Gordon. During
this time, Defendant Samuel frequently spoke harshly to
Plaintiff and criticized his work product. Defendant Samuel
also required Plaintiff to clear certain staffing decisions
with him though other employees outside of Plaintiff's
protected class were not subjected to this extra requirement.
Plaintiff attempted to meet with Defendants Samuel and Gordon
to attempt to resolve the harsh treatment and set
expectations for work product. Defendant Samuel left the
first meeting in anger and, at the second, stated that
further meetings would cause him to "act out."
after this second meeting, Plaintiff informed Defendant
Washington Gas of the EEOC determination. Defendant
Washington Gas is believed to have informed Defendants Samuel
and Gordon. Following notification of the EEOC's
determination, Plaintiff received two separate suspensions
totaling fifteen days for failure to receive approval for a
day off, though Plaintiff found someone to cover his shift,
and running a red light, though others outside
Plaintiff's protected classes received less harsh
discipline for similar actions.
6, 2018, Plaintiff filed his second EEOC charge alleging
retaliation and did select the "Continuing Action"
box. This second charge covered the dates from March 24, 2014
until June 6, 2018.
25, 2018, Plaintiff was terminated for unplugging his drive
camera, a practice he alleges is common among his fellow
employees and which does not typically receive discipline.
brought this lawsuit on August 6, 2018 alleging five counts:
Race Discrimination under Title VII (Count I); Color
Discrimination under Title VII (Count II); Retaliation under
Title VII (Count III); Race Discrimination and Creation of a
Hostile Work Environment under 42 U.S.C. § 1981 (Count
IV); and Retaliation under 42 U.S.C. § 1981 (Count V).
Defendant has moved to partially dismiss portions of each
count for lack of subject-matter jurisdiction and failure to
state a claim for which relief can be granted.
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). On a Rule 12(b) (6) motion to
dismiss, a court must accept all well-pleaded facts as true
and construe those facts in the light most favorable to the
plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Reyes v. Waples Mobile Home Park Ltd.
P'ship, 903 F.3d 415, 423 (4th Cir. 2018). The
complaint must provide a short and plain statement showing
that the pleader is entitled to relief, Fed.R.Civ.P. 8(a)(2),
and it must state a plausible claim for relief to survive a
motion to dismiss, Iqbal, 556 U.S. at 679; Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While
courts use the elements of a prima facie case to evaluate
allegations of discrimination in a complaint, a plaintiff
does not need to sufficiently establish a prima facie case at
the pleading stage to survive a motion to dismiss.
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511-12
(2002); Woods v. City of Greensboro, 855 F.3d 639,
648 (4th Cir. 2017). In a Rule 12(b)(1) motion to dismiss for
lack of subject-matter jurisdiction, a court may look beyond
the four corners of the complaint in order to satisfy itself
of jurisdiction. Mims v. Kemp, 516 F.2d 21, 23 (4th
Cir. 1975) .
first seek to have portions of Counts I-III dismissed for
lack of subject-matter jurisdiction. Defendants first argue
that Plaintiff did not reallege race and color discrimination
in his second EEOC charge and ...