Case Information
*1 fN GRK'S OFFICE .u S . DlsT. COURT AT m OKE, VA FILED N2V 2 ï 2217 IN THE UN ITED STATES DISTIUCT COURT FOR THE W ESTERN D ISTRICT OF VIR GN A J% , (J , cLn CHA RLOTTESV ILLE DIV ISION D CLER BETSY ACKERSON,
Plaintiff, Civil A ction N o. 3:17cv0001 1 M EM O M N D U M O PIN IO N By: Hon. G len E. Conrad THE RECTOR AN D V ISITOR S OF United States District Judge TH E UN IV ERSITY OF V IRG IN IA , Defendant.
Plaintiff Betsy Ackerson brought this action against defendant the Rector and Visitors of the University of Virginia (Gsthe University'') for unequal pay, disparate treatment based on sex, sex discrim ination, and retaliation .for her com plaints about unequal pay and poor accom modations for her m edical condition. The case is presently before the court on defendant's partial motion to dismiss tmder Rule 12(b)(1) of tàe Federal Rules of Civil Procpdure for lack of subject matter jurisdiction. For the reasons stated below, the motion Will be denied.
B ackaround ln December 2012, the University hired Ackerson as a Project M anager for Strategic Planning for one year. Am. Compl. !! 29-30. In December 2013, the University sent Ackerson a letler notifying her that the University had extended her appointm ent by one year tmtil December 24, 2014. Dec. 6, 2013 Extension Letter, Docket No. 16-19 Am. Compl. !! 63, 68-69. '' . On December 22, 2014 and December 22, 2015, the University again extended Ackerson's
contract for one year until. Decem ber 24, 2015 and D ecem ber 24, 2016, respectively. Dec. 22, . 2014 Extension Letter, Docket No. 16-2; Dec. 22, 2015 Extension Letter, Docket No. 16-3.
Before the latter extension expired, in April 2016, Ackerson received a letter explaining that the University had reassigned her to the position of Assistant Vice Provost. April 11, 2016 Extension Letter, Docket No. 16-4.The letter stated that Stltlhis position is limited in term and concludes D ecem ber 24, 2017.'1 Id.
ln June 2016, Ackerson filed a Charge of Discrim ination with the Equal Em ployment Opportunity Commission (&&EEOC'') for stx and disability-based discrimination and retaliation. Charge of Discrimination, Docket No. 14 Ex. B. In the charge, Ackerson alleged that the University had retaliated against her for exercising her rights under the Equal Pay Act of 1963 (G$EPA''), 29 U.S.C. j 206(d), and the Rehabilitation Act, 29 U.S.C. j 794, et seq. Ackerson received her EEOC Notice of ltight to Sue on January 12, 2017, Am. Compl. ! 9, and filed her original complaint on Febnzary 15, 2017.
On June 2, 2017, the University sent Ackerson a letter that stated, in pertinent part: g'Yqour limited-tenu appointment with the University is set to expire by its own terms on December 24, 2017. As was stated in the e-m ail to your counsel on M ay 24, 2017, that date is consistent with the continued and rapid completion of nearly al1 of yotlr responsibilities. . . . ln light of the foregoing, this confilnns that your current appointm ent with the University will end on Decem ber 24, 2017 and will not be renew ed.
J-IJ.S !! 145-47; Jtme 2, 2017 Notice of Non-reappointment, Docket No. 14 Ex. A.
Ackerson then filed an nm ended complaint, in which she pleads that CCUVA retaliated against Ackerson in Jtme 2017 when it stripped Ackerson of duties and notifed Ackerson that it would not renew her contract in December 2017, thereby terminating Ackerson's em ploym ent effective December 2017.'' Am. Compl. ! 185 (retaliation under the EPA); see Ldsa ! 217 (retaliation under the Rehabilitation Act). The snme allegation forms the basis of plaintiff's new Count V for retaliation under Title V11of the Civil Rights Act of 1964, 42 U.S.C. 5 2000e, et secl. Id. !! 201-03.
The defendant has m oved to dism iss Count V and the other paragraphs in the am ended complaint containing similar allegations for lack of subject matter judsdiction. The defendant contends that Ackerson has failed to exhaust the retaliation claim s made in those portions of the am ended complaint and thus that the plaintiff has not satisfied the prerequisite for federal court J'urisdiction in this m atter.
The parties did not request a hearing on the motion. The m atter has now been fully briefed and is ripe for review.
standard of Review Rule 12(b)(1) provides for the dismissal of claims over which the court lacks subject matter jurisdiction. W here, $ûas here, a defendant challenges the existence of subject matter J'urisdiction in fact,the plaintiff bears the burden of proving the tnzth of such facts by a preponderance of the evidence.'' U.S. ex rel Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). ln reviewing such a challenge, a coul't SGmay regard the pleadings as mere evidence on the issue and m ay consider evidence outside the pleadings without converting the proceeding to one for sllmmaryjudgment.'' Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004).
D iscussion A plaintiff's failure to file a charge with the EEOC and to exhaust her adm inistrative remedies under Title V11 before fling a Title VI1 claim in federal court deprives the court of sublect matter Jurisdiction over the claim. Jones v. Calvert Group. Ltd., 551 F.3d 297, 300 (4th . . [*]
[*] D efendant also m oves to dism iss certain allegations of retaliation under plaintiff's EPA and Rehabilitation A ct claims, but it is not clear that those claims are subject to the exhaustion requirement upon which the defendant relies. The EPA does not require the plaintiff to exhaust administrative remedies before bringinj a clahn under the EPA in federal court. See County of Washinlon v. Gunter, 452 U.S. 161, 175 n, 14 (1981). Simllarly, the plaintiff may not be subject to an exhaustion requirement for her claim under the Rehabilitation Act. See 0t1 v. Maryland Dep't of Pub. Safety & Com Servs., No. CV 10 8-16-3394, 2017 WL 3608181, at *5 (D. Md. Aug, 22, 2017) CtFor claims brought pursuant to j 504 of the Rehabilitation Act (29 U.S.C. j 794(a)j, a plaintiff is not required to exhaust administrative remedies.'') (alterations and internal quotation marks omittedl). But see Spencer v. Ashcroi, 147 F. App'x 373, 375 (4th Cir. 2005) ($1The Rehabilitation Act expressly incorporates the standards of the Americans with *4 Cir. 2009); Smith v. First Union Nat'l Bnnk, 202 F.3d 234, 247 (4th Cir. 2000). A plaintiff's EEOC charge desnes the scope of her right to sue in federal court. Jones, 551 F.3d at 300. ççonly those discrimination claims stated in the initial charge, those reasonably related to the original com plaint, and those developed by reasonable investigation of the original com plaint ntay be maintained in a subsequent Title Vl1 lawsuit.'' 1d. (internal quotation mrks omitted).
However, the Fourth Circuit has recognized an exception to the exhaustion requirement for certain retaliation claim s: a plaintiff m ay raise for the first tim e in federal court the claim that her employer retaliated against her for filing an EEOC charge. N ealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992). This exception is SGthe inevitable corollary of gthe Fourth Circuit's) generally accepted principle that the scope of a Title V11 lawsuit m ay extend to any kind of discrim ination like or related to allegations contained in the charge and grow ing out of such allegations during the pendency of the case before the (EEOCI.'' Id. (internal quotation marks omitted). This rule does not 'apply in cases in which a plaintiff could have alleged retaliation in ihe initial charge to the EEOC, but did not do so. Cumberlander v. KCL Site Servs.. LLC, Civil Action No. 08-994, 2009 W L 4927144, at *3 (E.D. Va. Dec. 17, 2009).
' The parties dispute whether this case falls within the am bit of Nealon or Cllmberlander. The defendant argues that this case resembles Cum berlander because the relevant adverse em ploym ent event occurred in April 2016 when the U niversity notified plaintiff her contract would expire on D ecem ber 24, 2017. The defendant chazacterizes the June 2017 letter as a m ere '' rem inder of the U niversity's decision to term inate the plaintiff s em ploym ent in D ecem ber 2017. At most, according to the defendant, the nonrenew al of plaintiff s contract was a m ere consequence of the University's prior decision to term inate her em ploym ent effective D ecem ber Disabilities Act (ADA). The ADA, in turn, follows the powers, remedies and procedures set forth in Title VI1 of the Civil Rights Act of 1964, as amended. Thus, like a Title V11 plairltift Spencer was required to exhaust her administrative remedies before instituting a lawsuit.'') (internal citations and quotation marks omittedl).
24, 2017. See Def.'s Br. 4 (citing Delaware State Collece v. Ricks, 449 U.S. 250 (1980), and Chardon v. Felmandez, 454 U.S. 6 (198 1), which generally hold that the statute of limitations begins to run when an adverse em ploym ent event, such as notice of a future term ination, occurs, not when the employment tenuinates or another consequelice of the adverse event occtlrs), Plaintiff, however, argues that the relevant adverse employm ent event was the June 2017 letter, wllich, because it occurred after she ûled her charge and complaint, resem bles the event in Nealon and provides a basis for the new allegations of retaliation in her nm ended complaint without requiring a second EEOC charge. Thus, this dispute boils down to whdher the June 2017 letter was m erely a rem inder of an earlier adverse employm ent event or the disputed em ploym ent event itself.
The court believes that the June 2017 letter was the latter. Because the University had previously set tenn lim its when extending plaintiff's em ploym ent w ithout ever enforcing those limits, the court believes that the April 2016 letter did not conclusively establish that the plaintiffs employm ent would be terminated in December 2017. Rather, the Apdl 2016 letter left open the possibility that plaintiff's employment could be extended as al1 of plaintifps prior term s of employment had been. The June 2017 letter informed the plaintiff for the first tim e that her contract would not be renew ed. Courts have recognized that (twhere an em ployee seeks renew al of alz employm ent contract, non-renewal of an employment contract constitutes an adverse employment action for purposes of Title VIl . . . .'' See Leibowitz v. Cornell Univ., 584 F.3d 487, 501 (2d Cir. 2009) (collecting cases f'rom other circuits explicitly and implicitly holding the same). Thus, the court finds that this case resembles the class of cases identified in Nealon.
Because the Jtme 2017 letter issued after the plaintiff filed her EEOC charge, the l plaintiff s retaliation claim s based on the letter need not be adm inistratively exhausted so long as *6 the plaintiff alleges that the nom enewal of her contract occurred as result of her sling the EEOC charge. It appears to the court that the plaintiff has done so. Because an act m ade by an em ployer in retaliation for the filing of an EEOC charge is reasonably related to that charge, no additional chrge is required. Jones, 551 F.3d at 304 (recognizing that where Nealon applies, it (tcertainly tells us that (the plaintiff's) retaliation claim relates back to the first EEOC charge''). Thus, the plaintiff did not need to exhaust administrative rem edies to invoke federal court jtlrisdiction over her claims of retaliation based on the June 2017 letter.
Accordingly, the court lnds that it has subject matter jurisdiction over the portions of plaintiffs nm ended com plaint alleging retaliation based on the nom enewal of her contract in June 2017.
Conclusibn ' u
For the reasons stated, the court will deny the defendant's partial m otion to dismiss. The Clerk is directed to send copies of this m emorandum opinion and the accompanying order to al1 cotm sel of record. V day orxovember
oA'rEo: Thisn , 2017.
United States District Judge