United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on a Partial Motion to Dismiss by
defendant Jamestown-Yorktown Foundation
("Defendant" or "Foundation"), pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Def.'s Mot., ECF No. 7. After examining the briefs and
the record, the Court determines that oral argument is
unnecessary because the facts and legal contentions are
adequately presented, and oral argument would not aid in the
decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R.
7(J). Thus, the Court DENIES Defendant's
Request for a hearing.
reasons stated below, Defendant's Motion to Dismiss is
GRANTED in part and DENIED in
part, and plaintiff Laura Hill
("Plaintiff") is PROVIDED leave to
amend her complaint.
FACTUAL AND PROCEDURAL HISTORY
Factual Background 
is a state agency tasked with operating two living history
museums that focus on the early history and settlements in
Jamestown and Yorktown, Virginia. Am. Compl., Prelim.
Statement. Plaintiff began working for Defendant in March of
2007 as a museum program assistant in the On-Site Education
Department. Id. ¶ 6. In October of 2011,
Plaintiff started working as a part-time historical
interpreter in the Interpretive Services Department.
Id. Plaintiff was terminated from this position in
December 2011 after requesting time off. Id. ¶
April 2012, after meeting with her managers, Plaintiff was
rehired as a historical interpreter and was assigned to the
Powhatan Village interpretive site, where she was the only
African American employee. Id. ¶¶ 8-9. On
July 27, 2012, Plaintiff complained to managers that her
supervisor was under-scheduling her and failing to train her.
Id. at 10. Beginning in 2013, Plaintiff reported to
her interpretive site and human resource managers that she
was being subjected to racial discrimination, disparate
treatment, and a hostile work environment created by her
supervisor. Id. at 10.
September 9, 2013, Plaintiff filed a racial discrimination
and retaliation complaint with the EEOC after someone
vandalized her employee mailbox (charge No. 437-2013-01205).
Id. She later amended that complaint in 2014 and
2015 to include harassment and vandalism of her employee
locker. Id. On January 1, 2015, Plaintiff was
reassigned to another interpretive site with a new
her time working for Defendant, Plaintiff applied for
numerous positions but was either denied interviews or not
selected for the position, whereas younger, less qualified
people of different races than her were chosen. Id.
at 11-21. Plaintiff also endured discipline and harassment
that other employees of different ages and races did not
endure, including the following: citations and suspensions
for not showing up to work when she was there or had a
legitimate reason not to be, id. ¶¶ 21,
24-25, 30-31, 42; disruptions to her training
responsibilities, id. ¶¶ 22, 29, 32, 37,
39-41, 43, 49-50; and numerous other citations, reprimands,
suspensions, and interferences, id. ¶¶
21-57. During this time period, Plaintiff filed complaints of
these employment acts with the Virginia Employment
Commission, the federal Equal Employment Opportunity
Commission ("EEOC")/ and the Virginia Occupational
Safety and Health Administration. Id. ¶ 38, 44,
46, 53, 71, 83.
September 21, 2018, Plaintiff was reassigned from her
position as a part-time historical interpreter to a position
as a non-costumed interpretive tour guide, which required a
reduced skill set and resulted in Plaintiff working fewer
hours. Id. ¶ 58. Plaintiff requested greater
responsibilities and more hours and sought to discuss her
concerns about the reassignment, but she never received any
replies from her managers. Id. ¶¶ 59-60.
On October 23, 2018, Plaintiff's managers called
Plaintiff into a meeting and terminated her employment,
purportedly because she improperly started a tour early on
October 14, 2018. Id. ¶ 62.
filed her Complaint against Defendant on October 26, 2018,
alleging five counts of employment discrimination: Count 1 -
Discrimination on the basis of race in violation of Title VII
of the Civil Rights Act of 1964 ("Title VII");
Count 2 -Retaliation in violation of Title VII for having
filed Virginia and FederalwEEO claims;" Count
3 - Hostile work environment based on race, religion, and
retaliation; Count 4 - Discrimination based on religion; and
Count 5 - Discrimination in violation of the Age
Discrimination in Employment Act ("ADEA"). Compl.,
ECF No. 1. Plaintiff filed an Amended Complaint on December
6, 2018, alleging the same statutory violations but adding
more factual detail. Am. Compl., ECF No. 4.
February 5, 2019, after receiving an extension of time to
file an answer, Defendant filed the instant partial motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6), Mot., ECF No. 7; Def.'s Memo, ECF No. 8,
along with an answer to the Amended Complaint, Answer, ECF
No. 9. On February 13, 2018, Defendant filed a request for a
hearing. Def.'s Req., ECF No. 10. Plaintiff filed her
response in opposition to the motion to dismiss on February
19, 2019, which was refiled on February 20, 2019 to correct a
minor procedural filing error. PL's First Resp., ECF No.
11; PL's Second Resp., ECF No. 12. Defendant replied on
February 25, 2019. Def.'s Reply, ECF No. 25. Having been
fully briefed, these matters are now ripe for review.
Rule 12(b) (6)
Rule 12(b)(6) standard of review permits dismissal when a
complaint fails "to state a claim upon which relief can
be granted." Fed.R.Civ.P. 12(b)(6). A complaint fails to
state a claim if it does not allege "enough facts to
state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
. Though a complaint need not be detailed, the *[f]actual
allegations must be enough to raise a right to relief above
the speculative level." Id. at 555; see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
motion to dismiss tests the sufficiency of a complaint
without resolving factual disputes, and a district court
"'must accept as true all of the factual allegations
contained in the complaint' and 'draw all reasonable
inferences in favor of the plaintiff.'"
Kensington Volunteer Fire Dep't v. Montgomery
Cty., 684 F.3d 462, 467 (4th Cir. 2012) (quoting
E.I, du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 440 (4th Cir. 2011)). Although the
truth of the facts alleged is presumed, district courts are
not bound by the "legal conclusions drawn from the
facts" and "need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments."
E. Shore Mkts., Inc. v. Assocs. Ltd. P'ship, 213
F.3d 175, 180 (4th Cir. 2000); see Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555).
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). In order to survive a
motion to dismiss under Rule 12(b)(6), "a complaint must
include 'more than an unadorned,
Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th
Cir. 2015) (quoting Iqbal, 556 U.S. at
Rule 12(b) (1)
motion to dismiss for lack of subject matter jurisdiction,
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure, may attack a complaint on its face, insofar as the
complaint fails to allege facts upon which the court can base
jurisdiction, or it may attack the truth of any underlying
jurisdictional allegations contained in the complaint.
Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017);
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
In the former situation, known as a facial challenge, the
court is required to accept all of the complaint's
factual allegations as true, "and the plaintiff, in
effect, is afforded the same procedural protection as he
would receive under a 12(b)(6) consideration."
Adams, 697 F.2d at 1219.
latter situation, involving a challenge to the truth of the
jurisdictional allegations, also known as a factual
challenge, "the district court may regard the pleadings
as mere evidence on the issue and may consider evidence
outside the pleadings." Velasco v. Gov't of
Indonesia, 370 F.3d 392, 398 (4th Cir. 2004) (citing
Adams, 697 F.2d at 1219) . In explaining how
district courts should evaluate evidence presented in a
factual challenge, the United States Court of Appeals for the
Fourth Circuit has indicated that it depends on whether the
jurisdictional facts are intertwined with the merits facts.
Kerns v. United States, 585 F.3d 187, 196 (4th Cir.
2009). When jurisdictional facts are not intertwined
with the merits, the trial court may weigh evidence and
resolve factual disputes to determine its jurisdiction.
See Arbaugh v. Y&H Corp., 546 U.S. 500, 514
(2006); Adams, 697 F.2d at 1219. In such a case, the
plaintiff bears the burden of proving jurisdiction by a
preponderance of the evidence and may present
"affidavit[s], depositions or live testimony" to
meet its burden. Adams, 697 F.2d at 1219; accord
United States ex rel. Vuyyuru v. Jadhav, 555
F.3d 337, 437-48 (4th Cir. 2009). When jurisdictional and
merits facts are intertwined, *[i]t is the better
view that . . . the entire factual dispute is
appropriately-resolved only by a proceeding on the
merits." Adams, 697 F.2d at 1219; accord
Kerns, 585 F.3d at 193, 196.
argues that the three-page preliminary statement of the case
in Plaintiff's Amended Complaint must be dismissed or
struck for failure to comply with Federal Rule of Civil
Procedure 10(b). According to Rule 10(b):
A party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances. ... If doing so would promote clarity,
each claim founded on a separate transaction or
occurrence-and each defense other than a denial-must be
stated in a separate count or defense.
Fed. R. Civ. P. 10(b) . As recognized by another judge of
this Court discussing Rule 10(b), rather than "lump[ing]
together" several claims for relief, the "preferred
practice of pleading is to state various claims for relief in
separate counts" because" [o] therwise, the onus .
. . is on the court to decipher which facts support which
claims, as well as to determine whether plaintiffs are
entitled to the relief sought." Haynes v.
Anderson & Strudwick, Inc., 508 F.Supp.
1303, 1307 n.l (E.D. Va. 1981); see also Shonk v.
Fountain Power Boats, 338 Fed.Appx. 282, 287 (4th Cir.
2009) (affirming the district court's 12(b)(6) dismissal
of certain counts of a complaint and noting that, given the
facts, "each claim . . . should have been stated in a
separate count"). Where a Defendant fails to comply with
Rule 10 (b), the typical remedy is to allow the party to
amend the complaint. 5A Charles Alan Wright & Arthur
Miller, Federal Practice and Procedure § 1322 (4th ed.)
("Even when a failure to comply with Rule 10(b) is
shown, leave to amend ought to be made available to the
offending pleader since the defect does not go to the merits
of the action."). Moreover, a court is required to
"freely give leave [to amend] when justice so
requires," Fed.R.Civ.P. 15(a)(2), though "a
district court may deny leave to amend if the amendment
'would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the
amendment would have been futile.'" United
States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707
F.3d 451, 461 (4th Cir. 2013) (quoting Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc)).
Plaintiff's preliminary statement violates Rule 10(b)
because it is not presented in numbered paragraphs. See
Davis v. Ala. Dep't of Human Res., No. 2:16cvl20,
2017 U.S. Dist. LEXIS 33518, at *12-13 (N.D. Ind. Mar. 9,
2017); Shaw v. Russell Trucking Line, Inc., 542
F.Supp. 776, 781 (W.D. Pa. 1983) . Thus, the Court
GRANTS Defendant's Motion to Dismiss the
portion of the complaint containing the preliminary
statement. Because this defect does not go to the merits and
leave to amend must be freely given, the Court
PROVIDES Plaintiff fifteen (15)
days to amend her Amended Complaint to comply with
argues that, pursuant to the Eleventh Amendment to the United
States Constitution, it is entitled to immunity from
Plaintiff's ADEA claims because it is an agency of the
Commonwealth. This motion has been properly brought
under Federal Rule of Civil Procedure 12(b)(1) because,
although Eleventh Amendment immunity is not a "true
limit" on jurisdiction, w[i]n effect, the
Eleventh Amendment limits the ability of a federal district
court to exercise its subject-matter jurisdiction over an
action brought against a state or one of its entities."
Roach v. W.Va. Reg'l Jail & Corr. Facility
Auth., 74 F.3d 46, 48 (4th Cir. 1996). Although a
plaintiff bears the burden of proving jurisdiction exists by
a preponderance of the evidence, see Adams, 697 F.2d
at 1219, because a defendant can waive sovereign immunity and
because sovereign immunity is raised more like an affirmative
defense, the Fourth Circuit has held that the defendant
asserting immunity bears the burden of demonstrating that
immunity exists. Hutto v. S.C. Ret. Sys., 773 F.3d
536, 543 (4th Cir. 2015).
Eleventh Amendment to the United States Constitution provides
that the "judicial power of the United States shall not
be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State or by Citizens or Subjects of any
Foreign State." U.S. Const, amend. XI. "Although
the Eleventh Amendment, by its terms, applies only to suits
brought against a state by 'Citizens of another
State,' it is well established that 'an unconsenting
State is immune from suits brought in federal courts by her
own citizens as well as by citizens of another State.
'" Lytle v. Griffith, 240 F.3d 404, 408
(4th Cir. 2001) (quoting Edelman v. Jordan, 415 U.S.
651, 663 (1974)); accord Pense v. Md. Pep't of Pub.
Safety & Corr. Servs., No. 18-1554, 2019 U.S. App.
LEXIS 17369, at *5 (4th Cir. June 11, 2019) ("By
'draw[ing] upon principles of sovereign immunity,'
the Supreme Court has 'construe[d] the Amendment to
establish that an unconsenting State is immune from suits
brought in federal courts by her own citizens as well as
citizens of another State, '" (quoting Port
Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304
(1990)) (alterations in original). This "immunity also
extends to 'state agents and state instrumentalities,
'" Lee-Thomas v. Prince George's Cnty. Pub.
Sch., 666 F.3d 244, 248 (4th Cir. 2012) (quoting
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
429 (1997)). However, it does not extend to municipal
corporations, counties, or similar political subdivisions.
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 280 (1977); Drewrey v. Portsmouth City Sch.
Bd., 264 F.Supp.3d 724, 727 (E.D. Va. 2017).
determine whether a state entity is entitled to immunity as
an "arm of the state," the Fourth Circuit has
articulated four factors that courts should consider: (1)
"whether a judgment against the governmental entity
would have to be paid from the State's
treasury;'' (2) "the degree of control that the
State exercises over the entity or the degree of autonomy
from the State that the entity enjoys;" (3) "the
scope of the entity's concerns- whether local or
statewide-with which the entity is involved;" and (4)
"the manner in which State law treats the entity."
Cash v. Granville Cty. Bd. of Educ, 242 F.3d 219,
222-24 (4th Cir. 2001).
preliminary matter, the Court addresses whether Defendant is
pursuing a facial or factual jurisdictional challenge and, if
factual, whether the jurisdictional and merits facts are
intertwined. Here, Defendant is making a factual challenge
because it is challenging the accuracy of
jurisdictional allegations not the adequacy of the
allegations on the face of the Amended Complaint. Moreover,
the facts are not intertwined here because the jurisdictional
issue of whether Defendant is an "arm of the state"
is wholly distinct from the merits issue of whether Defendant
violated the ADEA. Because the facts are not intertwined, the
Court may weigh evidence presented beyond the pleadings and
resolve factual disputes pertaining to Eleventh Amendment
immunity. Kerns, 585 F.3d at 196; Velasco,
370 F.3d at 398.
the Court addresses whether a judgment in this case
will be paid out of the Commonwealth's
treasury. The Commonwealth does provide substantial funding
to Defendant. Defendant provided the Court with evidence
showing that, in 2019, the Defendant received $18, 918, 251
of the Commonwealth's annual budget as decided by the
General Assembly of Virginia. Def.'s Budget Ex., ECF
No.13-1. Defendant represents to the Court that this
comprises "more than half of the Foundation's annual
operating budget," which it suggests indicates that a
judgment against Defendant would have at least a tangential
impact on the treasury. Def.'s Reply 6. Moreover,
Defendant argues that it "expects to be covered by the
Commonwealth of Virginia Public Liability Risk Management
Plan. Id. Virginia Code § 2.2-1837 states that:
A. Subject to the approval of the Governor, the Division [of
Risk Management in the Department of the Treasury] shall
establish a ...