United States District Court, W.D. Virginia, Danville Division
CARLA C. STEVENS, Plaintiff,
VIRGINIA DEPARTMENT OF CORRECTIONS, Defendant.
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Virginia Department
of Corrections' (“VDOC”) Motion to Dismiss
Plaintiff's Amended Complaint. [ECF No. 26.] The matter
was fully briefed by the parties, and I heard oral arguments
on April 16, 2019. I have fully reviewed the applicable
facts, arguments of the parties, and relevant law; the matter
is now ripe for disposition. For the reasons stated herein, I
will grant Defendants' Motion to Dismiss and dismiss
Plaintiff's Amended Complaint with prejudice.
STATEMENTS OF FACTS AND PROCEDURAL
facts are adequately recounted in my Opinion granting the
first Motion to Dismiss filed in this case and need not be
repeated here. (See Mem. Op. pgs. 1-2, Dec. 13, 2018
[ECF No. 23].). For purposes of ruling on the present Motion,
Plaintiff added the following allegations in her Amended
filing the “initial claim, ” Plaintiff asserts
that her work environment has become “hostile.”
She says she was given a reprimand for not coming into work
during the September 2017 state of emergency even though she
called in. Other officers who called in were not similarly
reprimanded. (Am. Compl. pg. 5 [ECF No. 25].)
granted motions to dismiss filed by the originally named
defendants, Plaintiff filed an Amended Complaint on December
28, 2018, naming only the Virginia Department of Corrections
(“VDOC”) as a defendant. [ECF No. 25.] VDOC filed
its Motion to Dismiss (“the Motion”) on January
11, 2019 [ECF No. 27], and Plaintiff filed a brief in
opposition on January 31 [ECF No. 29]. VDOC replied [ECF No.
30], and I heard oral arguments on the Motion on April 16,
2019. As I have reviewed the pleadings and arguments of the
parties, as well as the applicable law, this matter is ripe
STANDARD OF REVIEW
who is proceeding pro se, is entitled to a certain
level of deference in her pleadings by virtue of her status
as an unrepresented litigant. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). However, “the
requirement of liberal construction [of pleadings for pro
se parties] does not mean that the court can ignore a
clear failure in the pleadings to allege facts which set
forth a federal claim, nor can the court assume the existence
of a genuine issue of material fact where none exists.”
Knowles v. S. C.D.C., No. 2:09-1921-MBS, 2010 WL
2990157, at *3 (D.S.C. July 29, 2010).
survive a Rule 12(b)(6) motion to dismiss, 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. In determining facial plausibility, the court
must accept all factual allegations in the complaint as true.
Id. The Complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief” and sufficient “[f]actual
allegations . . . to raise a right to relief above the
speculative level . . . .” Twombly, 550 U.S.
at 555 (internal quotation marks omitted). Therefore, the
Complaint must “allege facts sufficient to state all
the elements of [the] claim.” Bass v. E.I. Dupont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Although “a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
” a pleading that merely offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
Amended Complaint suffers the same fatal defects as her
original Complaint. As a stated in my prior opinion, Title
VII prohibits discrimination in the “compensation,
terms, conditions, or privileges of employment, because of
such individual's race . . . .” 42 U.S.C. §
2000e-2(a)(1) (2018). In order to state a claim for disparate
treatment discrimination under Title VII, Plaintiff is
obliged to allege facts that show: (1) she is a member of a
protected class; (2) she had satisfactory job performance;
(3) she was subjected to adverse employment action; and (4)
similarly situated employees outside her class received more
favorable treatment. Prince-Garrison v. Md. Dept. of
Health & Mental Hygiene, 317 Fed.Appx. 351, 353 (4th
Cir. 2009) (citing Holland v. Washington Homes,
Inc., 487 F.3d 208, 214 (4th Cir. 2007), cert.
denied, 552 U.S. 1102 (2008)). An adverse employment
action is a discriminatory act which “adversely affects
the ‘terms, conditions, or benefits' of the
plaintiff's employment.” Von Gunten v.
Maryland, 243 F.3d 858, 865 (4th Cir. 2001) (quoting
Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239,
243 (4th Cir. 1997)).
before, Plaintiff's claim fails for want of an adverse
action. She contends that the single instance of being denied
inmate assistance constituted disparate treatment, but she
alleges no change in the terms, conditions, or benefits of
her employment. She does contend that, as a result of the
denial of inmate assistance, she was forced to perform her
job on her own, was injured in the process and, while out of
work, received worker's compensation benefits that
amounted to 66 2/3% of her regular pay. But, as Plaintiff
alleges, it was her injury that resulted in lower
pay, not the discriminatory acts of VDOC employees. The rate
of pay for any state employee while on worker's
compensation is 66 2/3%, regardless of his or her race.
See Va. Code Ann. § 65.2-500 (2018). In the
absence of any adverse employment action, her claim of
discrimination must fail.
apparent from Plaintiff's pleadings is that she is
attempting to make a negligence claim into a discrimination
one. She contends the allegedly discriminatory act of denying
her inmate assistance to perform her job duties was
“negligent and did breach [the] duty of care to ensure
a safe, secure and productive environment that Plaintiff
Stevens was entitled to.” (Am. Compl. pg. 3.) But her
tort claim against VDOC must fail for her failure to comply
with the notice provisions of the Virginia Tort Claims
See generally Va. Code Ann. § 8.01-195.1-
additional allegation-that she received a written
reprimand-does not save her claim. “[N]either oral nor
written reprimands constitute the sort of adverse employment
action cognizable under Title VII unless the plaintiff also
allege[s] that the reprimand has potential collateral
consequences that rise to the level of an adverse employment
action.” Hintonv. Va. Union Univ.,
185 F.Supp.3d 807, 819 (E.D. Va. 2016). Because Plaintiff has
failed to allege any ...