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Stevens v. Virginia Department of Corrections

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

May 21, 2019

CARLA C. STEVENS, Plaintiff,



         This 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.


         The 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 Complaint:

         Since filing the “initial claim, ”[2] 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].)

         After I 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 for disposition.


         Plaintiff, 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).

         To 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.


         Plaintiff's 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)).

         As 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.

         What is 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 Act.[3] See generally Va. Code Ann. § 8.01-195.1- 8.01-195.6 (2018).

         Plaintiff's 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 ...

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