DR. ARCHIE EARL, Plaintiff, v. NORFOLK STATE UNIVERSITY, THE BOARD OF VISITORS OF NORFOLK STATE UNIVERSITY, and THE COMMONWEALTH OF VIRGINIA, Defendants.
Civil No.: 2:13cv148
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division
February 13, 2014
This matter is before the Court on the motion to dismiss filed by Norfolk State University, the Board of Visitors of Norfolk State University, and the Commonwealth of Virginia (collectively “Defendants“), pursuant to
Dr. Archie Earl (“Plaintiff“) is a “66 year old, Black, male Associate Professor in the Department of Mathematics at Norfolk State University” (“NSU“). Pl.‘s Am. Compl. ¶ 1.2 NSU “is a state supported” university located in “the Commonwealth of Virginia.” Id. ¶ 2. Plaintiff also serves as “Chair of the NSU Faculty Salary Issues Research Committee” (“the Committee“). Id. ¶ 1. In 2006, the Committee began to study “gross inequities in faculty salaries.” Id. ¶ 9. The Committee, having discovered errors in data provided to the Committee by NSU‘s Human Resources Office, conducted a study of “sample data” consisting of “departmental data” accessible by “Committee members.” Id. ¶¶ 9-10. During “the Committee‘s ongoing analysis,” Plaintiff claims he discovered that, “with respect to recent hires, and white faculty, and younger faculty, and female faculty,” Plaintiff‘s salary was “woefully inadequate,” even2
When Plaintiff‘s “attempts at discussions with the administration” failed, he began “grievance proceedings” with the Equal Employment Opportunities Commission (“EEOC“) and the Virginia Council on Human Rights, “alleging discrimination on the basis of race, gender, and age.” Id. Plaintiff filed a charge of discrimination with the EEOC “on December 8, 2011” and the EEOC “issued a right-to-sue letter to Plaintiff on December 21, 2012.” Id. Plaintiff alleges that his “decision to file an EEOC complaint . . . triggered a wave of retaliatory acts that created a hostile and intimidating environment within which he was forced to operate.” Id. ¶ 20. Plaintiff‘s Amended Complaint lists the following “retaliatory acts” by Defendants:
- Denial of Plaintiff‘s “most recent request for sabbatical leave;”
- Denial of Plaintiff‘s “right to present an oral report, as Faculty Senate president, at meetings of the Board of Visitors” (“BOV“) in 2011 and 2012;
- Omission of Plaintiff‘s “reports to the Board of Visitors . . . from the BOV meeting handbook” in March and December, 2011;
Demand for copies of Plaintiff‘s “emails pertaining to the most recent presidential search” on October 26, 2010; - Disposal of Faculty Senate property in Fall 2011 and blaming Plaintiff for failing to obtain “proper authorization;”
- Refusal to meet with Plaintiff or “respond to his communications” on September 6, 2011 and July 3, 2012; and
- Attempts “to induce the Provost to terminate [Plaintiff‘s] contract with [NSU]” from January 2010 through February 2011.
Id. ¶ 20. Plaintiff alleges that Defendants’ “actions had the effect of subjecting the Plaintiff to public embarrassment, feelings of insecurity in his job, public ridicule, [and] belittlement.” Id. Furthermore, Plaintiff contends that he was forced “to operate in an environment that was hostile and permeated with discriminatory intimidation, and insult that was sufficiently severe as to alter the conditions of his employment, creating an abusive working environment.” Id.
On March 21, 2013, Plaintiff filed a Complaint in this Court, “individually, and as a class action, with respect to the Title VII claims,” alleging violations by Defendants of
II. STANDARD OF REVIEW
A. Subject Matter Jurisdiction — Rule 12(b)(1)
A party may move to dismiss an action for lack of subject matter jurisdiction pursuant to
B. Failure to State a Claim — Rule 12(b)(6)
Because a
Although the truth of the facts alleged in a complaint is assumed, 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. J.D. Assocs. Ltd., 213 F.3d 175, 180 (4th Cir. 2000). In ruling on a
In employment discrimination cases, the Supreme Court has held that a complaint need not “contain specific facts establishing a prima facie case of discrimination under the framework set forth . . . in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508 (2002). The Court explained that the “prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.” Id. at 510. The Fourth Circuit “has not, however, interpreted Swierkiewicz as removing the burden of a plaintiff to allege facts sufficient to state all the elements of [his] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Thus, although a complaint need not contain “detailed factual allegations,” a complaint containing mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
III. DISCUSSION
Defendants argue that Plaintiff‘s “entire Amended Complaint should be dismissed” because his
A. ADEA Claim
Plaintiff‘s Amended Complaint alleges that Defendants violated the
1. Sovereign Immunity
It is well-established “that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.” Nev. Dep‘t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003) (citing Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 669-70 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 15 (1890)). “The States’ 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)).
“‘The
Here, Plaintiff does not argue that Defendants are not “‘state agents [or] state instrumentalities.‘” Lee-Thomas, 666 F.3d at 248 (quoting Doe, 519 U.S. at 429). Nor does he assert that the Commonwealth‘s
2. Leave of Court to Amend — Rule 15(a)
Under
Defendants argue that Plaintiff should not be allowed to amend his Amended Complaint “to add a new defendant” because Defendants’ sovereign immunity as an agency of the Commonwealth of Virginia “has been settled law for more than a dozen years,” long before Plaintiff filed his lawsuit, “about six months ago.” Defs.’ Br. at 5, ECF No. 19. However, Defendants do not assert any prejudice or bad faith regarding Plaintiff‘s delay in naming the proper defendant in his Amended Complaint, or that Plaintiff‘s
B. EPA Claim
Plaintiff‘s Amended Complaint alleges that “statistical analyses” of “sample data from departments within the University community” show that Defendants “impermissibly discriminat[ed] against men, and in favor of women, of comparable qualifications and responsibilities, and skill in salary assignments,” in violation of the EPA. Pl.‘s Am. Compl. ¶¶ 10, 14, ECF No. 12. Defendants argue that Plaintiff‘s EPA claim should be dismissed because Plaintiff‘s “salary study — the core factual assertion of sexual inequity in pay — does not provide facts sufficient to support a prima facie violation of the EPA.” Defs.’ Br. at 14, ECF No. 14. Specifically, Defendants contend that Plaintiff‘s Amended Complaint fails to compare “male and females doing ‘equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.‘” Def.‘s Reply Br. at 5, ECF No. 19 (quoting
To establish a prima facie case of wage discrimination under the EPA, a plaintiff must show: “(1) that [his] employer has paid different wages to employees of opposite sexes; (2) that said employees hold jobs that require equal skill, effort,
1. Wage Difference between Sexes
Plaintiff‘s Amended Complaint asserts that Plaintiff is a “male Associate Professor in the Department of Mathematics at Norfolk State University.” Pl.‘s Am. Compl. ¶ 1, ECF No. 12. Plaintiff alleges that he discovered that “his salary was woefully inadequate,” compared to the salaries of “female faculty.” Id. ¶ 11. Although Plaintiff‘s Amended Complaint lacks specifics regarding the differences in salary, the Court finds that, at least at this stage of litigation, Plaintiff‘s Amended Complaint sufficiently alleges “that [his] employer has paid different wages to employees of opposite sexes.” Brinkley, 180 F.3d at 613.
Plaintiff alleges in his Amended Complaint that “he was at least as qualified” as higher-paid “female faculty” and that “the responsibilities of the job were essentially equivalent.” Pl.‘s Am. Compl. ¶ 11, ECF No. 12. He further contends that Defendants were “in violation of the Equal Pay Act” because they were “impermissibly discriminating against men, and in favor of women, of comparable qualifications and responsibilities, and skill.” Id. ¶ 14. However, Plaintiff asserts no facts in support of his allegations and his “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Although Plaintiff asserts that “he was at least as qualified” as the female faculty earning the higher salaries, and that “the responsibilities of the job[s] were essentially equivalent,” id. ¶ 7, he “has made no reference to the skills, effort, and responsibilities required of [him] as an ‘Associate Professor’ or to those of the [fe]male [faculty] who [Plaintiff] alleges receive a greater salary,” Noel-Batiste v. Va. State Univ., No. 3:12cv00826, 2013 U.S. Dist. LEXIS 16875, at *17 (E.D. Va. Feb. 7, 2013). “Therefore, no comparisons of their respective skills, effort, and responsibilities can be made.” Id. Indeed, “an Equal Pay Act plaintiff ‘cannot rest on the bare allegation’ that [he] is receiving lower pay for equal
C. Title VII Claim
Plaintiff‘s Amended Complaint alleges that “inferential statistical analyses” of “sample data from departments within the University community” show that Defendants “engag[ed] in a pattern or practice of discrimination, based on race,” in violation of
To establish a prima facie case of wage discrimination under
Plaintiff describes himself as an “Associate Professor in the Department of Mathematics at Norfolk State University,” Pl.‘s Am. Compl. ¶ 1, ECF No. 12, and refers to the higher-paid white faculty simply as “teaching faculty,” id. ¶ 2. However, because Plaintiff “has based [his] allegations ‘completely upon a comparison to an employee from a non-protected class,‘” the “‘validity of [his] prima facie case depends upon whether that comparator is indeed similarly situated.‘” Lawrence v. Global Linguist Solutions, LLC, No. 1:13cv1207, 2013 U.S. Dist. LEXIS 178817, at *9 (E.D. Va. Dec. 19, 2013) (quoting Haywood v. Locke, 387 F. App‘x 355, 359 (4th Cir. 2010)). Plaintiff asserts no facts establishing that he and the higher-paid white faculty “‘dealt with the same supervisor, [were] subject to the same standards [or] . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer‘s treatment of them for it.‘” Lawrence, 2013 U.S. Dist. LEXIS 178817, at *10. Thus, although Plaintiff contends that “[b]lack faculty” and “white faculty” had “equal qualifications, and responsibilities, and job assignments,” Pl.‘s Am. Compl. ¶ 13, a “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Accordingly, because Plaintiff “fails
D. Retaliation Claim
Plaintiff‘s Amended Complaint alleges that his resistance to Defendants’ “uneven treatment of [the] faculty” and “his having filed charges of discrimination with the Equal Employment Opportunities Commission . . . triggered a wave of retaliatory acts that created a hostile and intimidating environment within which he was forced to operate.” Pl.‘s Am. Compl. ¶ 20, ECF No. 12. Plaintiff further contends that his “public embarrassment, feelings of insecurity in his job, public ridicule, [and] belittlement” was “sufficiently severe as to alter the conditions of his employment, creating an abusive working environment.” Id. Defendants argue that Plaintiff‘s retaliation claim should be dismissed because Plaintiff failed to exhaust his administrative remedies and, in any event, Plaintiff‘s Amended Complaint fails to allege any “materially adverse action” that occurred because of Plaintiff‘s participation in “protected activity.” Defs.’ Br. at 12, ECF No. 14.
Plaintiff filed a Charge of Discrimination with the EEOC on December 8, 2011, “alleging discrimination on the basis of race, gender, and age.” Pl.‘s Am. Compl. ¶ 11, ECF No. 12. In the “particulars” section of Plaintiff‘s Charge, Plaintiff reported that “[o]n or about April 4, 2008 . . . [he] learned that as a tenured faculty member [he] was paid less than newly hired instructors and assistant professors. These findings were presented to the Board of Visitors, the President of the University, and the Provost of the University. No corrective action has been taken.” Defs.’ Ex. 1, ECF No. 14-1.6 Plaintiff also alleged in his EEOC Charge his belief that “on the basis of sex (male) and age I continue to be paid unequal wages than younger and female employees.” Id.
Generally, a
Most of the “retaliatory acts” alleged in Plaintiff‘s Amended Complaint occurred before December 8, 2011. Pl.‘s Am. Compl. ¶ 20. Plaintiff asserts that during “all of 2011,” he was denied “the right to present an oral report.” Id. In March of 2011, Plaintiff‘s “reports to the Board of Visitors were omitted . . . from the BOV meeting handbook.” Id. On October 26, 2010, the University demanded “copies of [Plaintiff‘s]
Plaintiff‘s EEOC complaint alleged only pay discrimination, as evidenced by the boxes on the EEOC form marked “race,” “sex,” “age,” and “other — Equal Pay,” as well as Plaintiff‘s narrative complaining of “unequal wages.” Defs.’ Ex. 1, ECF No. 14-1. Plaintiff did not check the “Retaliation” box on the EEOC form. Id. Nor did Plaintiff “raise anything remotely resembling a claim for retaliation in his charge to the EEOC. He did not directly describe taking any actions that would generally
2. Prima Facie Case of Retaliation
“The elements of a prima facie retaliation claim under
Plaintiff alleges seven “retaliatory acts” by Defendants that subjected him to “public embarrassment, feelings of insecurity in his job, public ridicule, [and] belittlement.” Pl.‘s Am. Compl. ¶ 20. “An adverse employment action is a discriminatory act that ‘adversely affect[s] the terms, conditions, or benefits of the plaintiff‘s employment.‘” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (quoting James v. Booz Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)). A hostile work environment may satisfy the “adverse employment action” prong of the prima facie case for retaliation if “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.‘” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1217-18 (D.C. Cir. 2006)); see also Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001) (“Retaliatory harassment can constitute adverse employment action.“), overruled on other grounds by White, 548 U.S. at 67-68. To advance such a claim, a plaintiff must show that his employer engaged in unwelcome conduct that was “sufficiently severe or pervasive as to alter the conditions of [his] employment and create an abusive atmosphere.” EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167,
Plaintiff‘s “formulaic recitation of the elements of a [hostile work environment] cause of action,” Twombly, 550 U.S. at 555, — namely, that Defendants subjected him to “a hostile and intimidating environment” that was “sufficiently severe as to alter the conditions of his employment,” Pl.‘s Am. Compl. ¶ 20, ECF No. 12, — simply “will not do,” Twombly, 550 U.S. at 555. Plaintiff presents no facts showing how any of Defendants’ actions “adversely affect[ed] the terms, conditions, or benefits of [his] employment.” Holland, 487 F.3d at 219. Nor does Plaintiff allege that Defendants’ actions “dissuaded [him] from making or supporting a charge of discrimination.” White, 548 U.S. at 68. Indeed, as discussed above, most of Defendants’ alleged “retaliatory acts” occurred before Plaintiff made his official charge of discrimination to the EEOC. Because Defendants’ actions were, at worst, “normally petty slights, minor annoyances, and simple lack of good manners,” White, 548 U.S. at 68, Plaintiff fails to allege that he suffered an “adverse employment action,” Coleman, 626 F.3d at 190.
“An employee need not prove causation itself at the prima facie case stage: rather, a close temporal relationship between the protected activity and the adverse action is sufficient to show a causal nexus.” Brockman v. Snow, 217 F. App‘x 201, 207 (4th Cir. 2007) (citing Yashenko v. Harrah‘s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006)). “While evidence as to the closeness in time ‘far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality.‘” Yashenko, 446 F.3d at 551 (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)).
Plaintiff alleges seven retaliatory acts by Defendants, occurring between January, 2010 and July 3, 2012. His Amended Complaint supplies only the date of his charge filed with the EEOC — December 8, 2011. Plaintiff fails to allege any specific dates or timeframes corresponding to his “fight against salary inequities” or for his “having been a vocal and persistent critic of the NSU administration.” Pl.‘s Am. Compl. ¶ 20.8 In
E. Leave to Amend to Cure Deficiencies
As discussed, the Court has granted leave to Plaintiff to once more amend his Amended Complaint for the “purpose of inserting the President of Norfolk State University, in his individual capacity, as a Defendant.” Pl.‘s Br. in Opp. at 8, ECF No. 17. And, as discussed at length, the Court has determined that Plaintiff‘s Amended Complaint, in its current state, is insufficient to support any of his discrimination and retaliation claims.
Plaintiff has not expressly requested leave to further amend his Complaint regarding any deficiencies identified by Defendant or this Court. However, because it is at least conceivable that Plaintiff could set forth sufficient facts to
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss is GRANTED. Plaintiff‘s claims are DISMISSED WITHOUT PREJUDICE. Plaintiff is ORDERED to file within fourteen (14) days, if desired, a Second Amended Complaint curing the deficiencies identified in this Opinion and Order.
IT IS SO ORDERED.
/s/
Mark S. Davis
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
February 13, 2014