United States District Court, E.D. Virginia, Richmond Division
NIKKI A. GARDNER, Plaintiff,
DAVID J. SHULKIN, in his official capacity as Secretary of the Department of Veterans Affairs, Defendant.
A. Gibney, Jr., United States District Judge
July, 2014, the Strategic Acquisition Center
("SAC") of the Department of Veterans Affairs
("VA") fired Nikki A. Gardner, a contract
specialist. Gardner, an African American woman with dark
skin, has sued David J. Shulkin, the Secretary of the VA,
alleging that the VA discriminated against her in violation
of Title VII of the Civil Rights Act of 1964 and the
Rehabilitation Act of 1973. She also seeks to reverse and
vacate the decision of the VA's Merits Systems Protection
Board ("MSPB"). Shulkin has moved to dismiss
Gardner's color claim in Count One of the amended
complaint for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). Because the Court
has subject matter jurisdiction over that claim, the Court
will deny the motion to dismiss.
began working as a contract specialist with the federal
government on March 3, 2011. In March, 2012, Gardner
transferred to the SAC. Shortly thereafter, James Poe
transferred to the SAC and became Gardner's direct
supervisor. Gardner says that she never experienced
discrimination prior to Poe's arrival, but constantly
suffered it afterwards. Poe yelled at Gardner in front of
other co-workers, slammed the door in her face, refused to
communicate with her, and acted generally abusively towards
Poe allegedly treated Gardner's white, male co-workers
with much more respect.
working in this environment for almost two years, Gardner
filed an initial charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") on April
4, 2014. Her final amended charge, filed on November 11,
2014, alleged retaliation and discrimination based on sex,
race, and disability. During the administrative
investigation, Gardner reported that she "was the only
dark-skinned black African-American" in her office, and
that the VA "treated darker skinned woman [sic] of
African American decent [sic] differently than fair skinned
African American woman [sic]." (Dk. No. 37-1, at 7.) In
June, 2014, the VA notified Gardner that it would fire her
effective July 13, 2014. After exhausting her administrative
remedies through the MSPB, Gardner received a right to sue
letter on October 7, 2016.
filed suit on November 7, 2016. Her amended complaint asserts
seven counts: (1) race, color, and national origin
discrimination in violation of Title VII; (2) reprisal for
engaging in protected activities; (3) violation of the
Rehabilitation Act; (4) hostile and abusive work environment;
(5) retaliation; (6) reversal and vacation of the MSPB
decision; and (7) fraud upon the Court. The color
discrimination claim within Count One remains the only
disputed count in the pending motion to dismiss.
VII prohibits employers from firing an employee "because
of such individual's race, color, religion, sex, or
national origin." 42 U.S.C § 2000e-2(a)(1). A
plaintiff must exhaust all administrative remedies to file
suit in federal court under Title VII. See Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
Importantly, a plaintiffs failure to exhaust administrative
remedies deprives a federal court of subject matter
content of the administrative charge determines the scope of
a plaintiff s right to file a federal lawsuit. See Smith
v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th
Cir. 2000). Accordingly, a plaintiff may only bring suit in
federal court for complaints "stated in the initial
charge, those reasonably related to the original complaint,
and those developed by reasonable investigation of the
original complaint." Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996);
see also Johnson v. Portfolio Recovery Assocs., LLC,
682 F.Supp.2d 560, 571 (E.D. Va. 2009) ("For example,
the plaintiffs claim generally will be barred if [her] charge
alleges discrimination on one basis-such as race-and [she]
introduces another basis in formal litigation-such as
sex."). The Court, therefore, must determine whether the
charges Gardner alleges in her amended complaint
"reasonably relate" to her EEOC charge and the
subsequent administrative investigation. See Smith,
202 F.3d at 247.
alleges discrimination based on color. Gardner, however, only
included charges of retaliation and discrimination on the
basis of sex, race, and disability in her EEOC charge. Courts
have recognized that "there is potential overlap between
discrimination based upon race, nationality, and color."
Gordon v. Richmond Pub. Sch., No. 3:13cvll3, 2013
U.S. Dist. LEXIS 106701, at *15 (E.D. Va. July 30, 2013).
Courts look to the EEOC charge, the administrative
investigation, and the federal complaint to determine the
extent of this "potential overlap." See id.;
Nieves v. CCC Transp., LLC, No. 3:12cv500, 2012 U.S.
Dist. LEXIS 127060, at *11 (E.D. Va. Sept. 6, 2012).
the administrative investigation, Gardner repeatedly asserted
that she "was the only dark-skinned black
African-American" in her office, and her employer
"treated darker skinned woman [sic] of African American
decent [sic] differently than fair skinned African American
woman [sic]." (Dk. No. 37-1, at 7.) These assertions
sufficiently put the VA on notice of Gardner's subsequent
color claim. See Nieves v. CCC Transp., LLC, No.
3:12cv500, 2012 U.S. Dist. LEXIS 127060, at * 11 (E.D. Va.
Sept. 6, 2012) (holding the plaintiffs allegation that
"he was harassed through . . . questions about [his]
skin tone . . . and cursed by a White coworker," and his
valid national origin charge sufficiently put the defendant
on notice of the plaintiffs subsequent race claim).
relies on the Fourth Circuit's decision in Bryant v.
Bell Atlantic Maryland., Inc., 288 F.3d 124 (4th Cir.
2002), for the proposition that race and color are
categorically distinct claims. In Bryant, however,
the plaintiff tried to assert claims for retaliation, color,
and sex discrimination in his federal complaint when his
administrative charge only included race discrimination.
Id. at 133. The court concluded that the
administrative investigation did not reveal any facts to
support the plaintiffs subsequent claims. Id. In
this case, "reasonable investigation of the original
complaint" did reveal allegations of color
discrimination, which are "reasonably related" to
Gardner's original race discrimination charge. See
Evans, 80 F.3d at 963. Accordingly, the Court will deny
Shulkin's motion to dismiss.