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Hill v. Jamestown-Yorktown Foundation

United States District Court, E.D. Virginia, Newport News Division

July 15, 2019

LAURA HILL, Plaintiff,



         This 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.

         For the 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.


         A. Factual Background [1]

         Defendant 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. ¶ 7.

         In 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.

         On 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 supervisor. Id.

         During 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.

         On 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.

         B. Procedural Background

         Plaintiff 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.

         On 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.


         A. Rule 12(b) (6)

         The 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).

         A 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, the-defendant-unlawfully-harmed-me accusation.'" Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (quoting Iqbal, 556 U.S. at 678).[2]

         B. Rule 12(b) (1)

         A 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.

         In the 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.


         A. Preliminary Statement

         Defendant 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)).

         Here, 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 Rule 10(b).

         B. Eleventh Amendment

         Defendant 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.[3] 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).

         1. Standard

         The 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).

         To 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;''[4] (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).

         2. Analysis

         As a 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.[5] 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.

         a. State Treasury

         First, 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 ...

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