United States District Court, E.D. Virginia, Richmond Division
KIMBERLY J. PETTAWAY, Plaintiff,
SCHOOL BOARD OF PRINCE GEORGE COUNTY, VIRGINIA, Defendant.
MEMORANDUM OPINION (GRANTING DEFENDANT'S PARTIAL
MOTION TO DISMISS)
E. Hudson Senior United States District Judge.
MATTER comes before the Court on a Motion to Dismiss Counts
III and IV of the Second Amended Complaint (the
"Motion" (ECF No. 36)) filed by the School Board of
Prince George County, Virginia ("Defendant" or
"School Board"). Kimberly Pettaway
("Plaintiff') timely filed a Memorandum in
Opposition to the Motion to Dismiss (ECF No. 46), and
Defendant filed its Reply on April 1, 2019 (ECF No. 47). The
matter is now ripe for the Court's review, and the Court
will reach its disposition without a hearing pursuant to
Local Rule of Civil Procedure 7(J).
is an African-American woman who suffers from a disability.
(Second Am. Compl. (ECF No. 35) ¶ 6.) In the Second
Amended Complaint, Plaintiff alleges that she experienced
unlawful discrimination and retaliation while working as a
school bus driver for Prince George County Public Schools.
(Second Am. Compl. passim.) Plaintiff alleges, for
example, that non-African-American bus drivers were assigned
new or newer buses to drive, while Plaintiff was consistently
assigned to drive older buses that experienced various
mechanical issues. (Id.) In addition, Plaintiff
alleges that non-African-American bus drivers were assigned
bus routes that were more desirable than Plaintiffs assigned
bus routes. (Id. ¶¶ 37, 41, 45.) After
discussing her perceived discrimination with her supervisor
and other county officials, Plaintiff was fired on February
22, 2017. (Id. ¶ 79.) Notably, the Second
Amended Complaint does not state that alleged discrimination
was the result of an official municipal policy or custom.
argues that Count III of the Second Amended Complaint, which
alleges unlawful retaliation in violation of 29 U.S.C. §
794, is time barred by the one-year statute of limitation
contained in Va. Code Ann. § 51.5-46(B). (Def.'s Br.
Supp. Mot. Dismiss (ECF No. 37) 4-5) In her Memorandum in
Opposition to the Motion to Dismiss, Plaintiff concedes that
Count III of the Second Amended Complaint is time barred.
(PL's Mem. Opp. Mot. Dismiss 2.) Accordingly, the Court
need not address Count III and it will be dismissed with
prejudice. Defendant also correctly argues that Count IV
fails to plead a claim under 42 U.S.C. § 1981.
(Def.'s Br. Supp. Mot. Dismiss 5-7.) However, Plaintiff
argues that Count IV should be permitted to proceed despite
Defendant's "hypertechnical" argument, and, in
the alternative, Plaintiff requests leave to amend the Second
Amended Complaint. (PL's Mem. Opp. Mot. Dismiss 2-3.)
aside the substance of the Second Amended Complaint,
Plaintiff filed her original Complaint (ECF No. 1) on June 4,
2018. However, ten months later, the case has not moved
beyond the pleading stage. This is due in part to Plaintiffs
multiple requests for extensions of time to respond to
Defendant's first and second Motions to Dismiss.
(See ECF Nos. 8 and 24 (requesting extensions of
time).) In addition, the Court has liberally granted
Plaintiff leave to make two separate amendments in order to
remedy deficiencies in her pleadings. (See ECF Nos. 13
and 34.) Based in part on these multiple extensions and
amendments, when the Court granted Plaintiff leave to file a
Second Amended Complaint, the Court explicitly informed
Plaintiff that "no additional leave to amend will be
granted, nor will the Court grant Plaintiff additional
extensions of time absent extreme circumstances." (ECF
STANDARD OF REVIEW
motion to dismiss filed under Federal Rule of Civil Procedure
12(b)(6) tests a complaint's legal sufficiency.
Republican Party o/ N.C. v. Martin, 980 F.2d 943,
951 (4th Cir. 1992). While "detailed factual
allegations" are not required, a complaint must contain
"more than labels and conclusions" or a
"formulaic recitation of the elements of a cause of
action." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations omitted). Thus, to survive a
12(b)(6) challenge, a complaint's "[f]actual
allegations must be enough to raise a right to relief above
the speculative level," id., to a level that is
"plausible on its face," id. at 570. In
reviewing a 12(b)(6) motion, the Court assumes well-pleaded
allegations to be true and views a complaint's facts in
the light most favorable to the plaintiff. T.G Slater
& Son v. Donald P. & Patricia Brennan, LLC, 385
F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However,
legal conclusions are not entitled to the same deference.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
12(b)(6) review, the Court "generally cannot reach the
merits of an affirmative defense, such as the defense that
the plaintiffs claim is time-barred," however, the Court
may consider an affirmative defense when there are sufficient
facts alleged in the complaint to make a ruling. Goodman
v. PraxAir, Inc., 494 F.3d 458, 464 (4th Cir. 2007).
"This principle only applies, however, if all facts
necessary to the affirmative defense 'clearly appear
on the face of the
complaint.'''''' Id. (quoting
Richmond, Fredericksburg & Potomac R.R. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993); also citing
Desser v. Woods, 296 A.2d586, 591 (Md. 1972)).
42, section 1981 of the United States Code provides that
citizens shall have "the same right in every State and
Territory to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property as
is enjoyed by white citizens .. . ." 42 U.S.C. §
1981. A § 1981 claim "must be founded on
purposeful, racially discriminatory actions that affect at
least one of the contractual aspects listed in §
1981(b)." Spriggs v. Diamond Auto Glass, 165
F.3d 1015, 1018 (4th Cir. 1999) (citing Gen. Bldg.
Contractors Ass 'n v. Pennsylvania, 458 U.S. 375,
391 (1982)); see also 42 U.S.C. 1981(b) (listing
actions considered to be included in the term "make and
enforce contracts"). Furthermore, and important to the
outcome of the current matter, "when suit is brought
against a state actor, [42 U.S.C.] § 1983 is the
'exclusive federal remedy for violation of the rights
guaranteed in § 1981.'" Dennis v. Cty. of
Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (quoting
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733
Second Amended Complaint, Plaintiff has not pleaded a §
1983 cause of action, and therefore, Plaintiff cannot
vindicate the statutory right that § 1981 confers on
her. See Id. Furthermore, even if the Court granted
Plaintiff leave to amend her pleading-for a third
time-Plaintiff has not pleaded that the alleged
discrimination she suffered was the result of an official
municipal policy. See Carter v. Morris, 164 F.3d
215, 218 (4th Cir. 1999) ("[I]t is by now well settled
that a municipality is only liable under section 1983 if it
causes such a deprivation through an official policy or
custom." (emphasis added (citing Monell v. Dep
't of Soc. Servs., 436 U.S. 658, 690-91 (1978))).
Municipal policy may be found in written ordinances and
regulations, in certain affirmative decisions of individual
policymaking officials, or in certain omissions on the part
of policymaking officials that manifest deliberate
indifference to the rights of citizens. Outside of such
formal decision-making channels, a municipal custom may arise
if a practice is so persistent and widespread and so
permanent and well settled as to constitute a custom or usage
with the force of law.
Id. (internal citations and quotation marks
omitted). Also, it bears mentioning that a municipality
cannot be held liable under § 1983 based upon a theory
of respondeat superior. Id. Therefore, simply
stated, Plaintiffs allegations fall short of the factual
predicate that is necessary to hold a municipality liable in
a § 1983 suit. Accordingly, even if another amendment