OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss filed by defendant Portfolio Recovery Associates, LLC (“PRA” or “Defendant”), and the oral Motion to Amend the Complaint, made by plaintiff Mark Johnson (“Plaintiff’ or “Johnson”). Oral argument has taken place, and the motions are now ripe for decision.
I. Factual and Procedural History
A. Factual history
Defendant is in the business of purchasing, and then collecting, delinquent debt. (Compl. ¶ 21, Docket No. 1.) Plaintiff was hired by Defendant on July 15, 2003 as an Assistant Vice President. (Id. at 22.) He worked in Defendant’s non-Bankrupt Acquisitions unit and was granted the same access, expectations and substantially the same authority as Craig Grube (“Grube”), an Executive Vice President. (Id. at ¶ 29.) Michael Petit (“Petit”) was hired as a Senior Vice President shortly afterwards (in July 2003), and Chris Graves (“Graves”) was hired as a Vice President in December 2005. (Id. at ¶¶ 30, 35.) According to Plaintiff, all three men had substantially similar job duties; however, Petit and Graves are Caucasian, and both men received disproportionately more compensation than Plaintiff, an African-American. (Id. at ¶¶ 3, 36, 56, 67.)
Based on Plaintiffs observations of the respective contributions made by himself and Petit, Plaintiff met with his superior, Grube, in July 2005 and requested a promotion. (Id. at 61.) Plaintiffs title was changed to Vice President. However, such title change did not result in a substantial pay increase “beyond the customary five to six percent (5-6%) increase that he had received before and after the title change.” (Id. at ¶¶ 61, 63.) In July 2007, Plaintiff again met with Grube to discuss his compensation, and asked “why Petit was being compensated more than he was.” (Id. at ¶ 64.) No “adequate action was taken” regarding Plaintiffs pay following this discussion. (Id. at ¶ 66.) Plaintiff does not allege that he mentioned race during any of the meetings with Grube or that he ever complained that he was compensated unfairly due to his race.
On April 28, 2008, Plaintiff was terminated by Defendant “for allegedly violating
B. Procedural history
Plaintiff filed an administrative Charge of Discrimination jointly with the Virginia Council on Human Rights and the Equal Employment Opportunity Commission (“EEOC”) on May 12, 2008. (Id. at ¶ 18.) The EEOC issued a Notice of Right to Sue letter to Plaintiff on November 21, 2008. (Id. at ¶ 19.) Plaintiff filed suit in this Court on November 24, 2008. In counts I and II of his Complaint, Plaintiff claims that Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000) (“Title VII”), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”), by denying him fair compensation because of his race. (Id. at ¶¶ 75, 85.) In counts III and IV of his Complaint, Plaintiff claims that Defendant again violated Title VII and § 1981 by retaliating against him when terminating his employment “for sharing relevant or potentially relevant information with an attorney to pursue race discrimination claims.” (Id. at ¶¶ 95,102.)
Defendant subsequently filed a motion to dismiss, which was fully briefed by both parties. Plaintiffs counsel later sent the Court a letter, which was not filed, attaching a copy of newly enacted federal legislation that Plaintiffs counsel said “overturned” relevant Supreme Court case law.
II. Standard of Review
A. Rule 12(b)(1)
Defendant seeks to dismiss Plaintiffs Title VII retaliation claim pursuant to Federal Rule of Civil Procedure 12(b)(1), which permits a defendant to move for dismissal of a claim due to the court’s lack of subject matter jurisdiction. A.W. ex rel. Wilson v. Fairfax County Sch. Bd.,
When considering a Rule 12(b)(1) motion to dismiss, unlike a motion to dismiss pursuant to Rule 12(b)(6), “the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Government of Indonesia,
B. Rule 12(b)(6)
Defendant also seeks to dismiss Plaintiffs Title VII and § 1981 race discrimination claims, as well as his § 1981 retaliation claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), which permits a defendant to seek dismissal based on the plaintiffs “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A motion to dismiss for failure to state a claim should be granted if the complaint does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.Civ.P. 8(a)(2), so as to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic,
Pursuant to Rule 12(d), if matters outside the pleadings are submitted in conjunction with, or in opposition to, a 12(b)(6) motion the court must either exclude such materials from consideration or convert the motion into a motion for summary judgment. Fed.R.Civ.P. 12(d). If the motion is converted, the court must afford the parties a reasonable opportunity to present additional pertinent materials. Id. However, the prohibition on considering matters outside the pleadings does not apply to documents expressly relied on in a complaint.
III. Analysis
Defendant asserts that the Court has no subject matter jurisdiction over Plaintiffs Title VII retaliation claim, and that the remaining claims should be dismissed for failure to state a claim. Because subject matter jurisdiction is foundational, the Court will first address the motion to dismiss the count III Title VII retaliation claim.
A. Retaliation claims
Title VII and § 1981 prohibit an employer from retaliating against an employee for opposing unlawful discrimination or participating in Title VII processes. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981. “A plaintiff can prove illegal retaliation under Title VII or § 1981 if he shows that ‘(1) he engaged in protected activity, (2) he suffered an adverse employment action at the hands of [his employer]; and (3) [the employer] took the adverse action because of the protected activity.’ ” Bryant v. Aiken Reg’l Med. Ctrs. Inc.,
1. count III — retaliation under Title VII
The anti-retaliation provision of Title VII contains two distinct clauses forbidding discrimination against a covered person. The provision includes what is known as the “opposition clause”, which makes it “an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter,” and the “participation clause”, which makes it an unlawful employment practice for the employer to discriminate because the employee “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3. To constitute prohibited retaliation, the adverse actions allegedly taken by the employer must have been in response to the employee’s “opposition” to an unlawful employment practice or “participation” in an investigation of an unlawful employment practice, made unlawful pursuant to 42 U.S.C. § 2000e-2. That section of Title VII provides that “[i]t shall
a. exhaustion of administrative remedies
A plaintiff is required to file a charge with the EEOC and exhaust his administrative remedies before filing suit under Title VII. Bryant v. Bell Atlantic Maryland, Inc.,
In enacting Title VII, Congress created an agency under whose jurisdiction there would be an opportunity for the parties to resolve employment issues without public litigation. The intent was that, by avoiding publicity, employees might be spared embarrassment, and employers might be more willing to adjust their employment practices if they were not subjected to the glare of public accusation and recrimination. Congress imposed short limitations periods for bringing claims and made it a condition precedent to the public litigation of those claims that an employee must first seek administrative relief through the EEOC within 90 days (now 180 or 300 days depending on the existence of a state deferral agency). The purposes underlying the administrative charge requirement include giving the charged party notice of the claim, narrowing the issues for speedier and more effective adjudication and decision, and giving the EEOC and the employer an opportunity to resolve the dispute. If the EEOC finds reasonable cause to believe that a violation has occurred it must attempt to eliminate the practice through conciliation, conference, and persuasion before commencing a lawsuit.
2 Barbara T. Lindemann & Paul Gross-man, Employment Discrimination Law 1894 (4th ed.2007). For any number of reasons, the EEOC may also issue a notice to a claimant of their right to bring a private civil action, as Plaintiff alleges took place here.
The Fourth Circuit recently discussed at length the Congressional goals in enacting the Title VII exhaustion requirement. Chacho v. Patuxent Inst.,
Defendant asserts that Plaintiffs Title VII retaliation claim alleged in count III should be dismissed because Plaintiff failed to exhaust his administrative remedies as to such allegation, thereby leaving the Court without subject matter jurisdiction. Specifically, Defendant asserts that Plaintiff failed to explicitly allege retaliation in his EEOC charge, and that retaliation is not reasonably related to the substance of the EEOC charge. In considering the exhaustion of administrative remedies requirement, the Fourth Circuit recently stated in Jones that “[t]he scope of the plaintiffs right to file a federal lawsuit is determined by the [EEOC] charge’s contents.” Jones,
Being mindful of the Congressional goals for the Title VII enforcement scheme and the importance of the exhaustion requirement in serving to further those goals, the Court must determine whether the EEOC charge supports the Title VII retaliation claim in count III of Plaintiffs Complaint. Assuming for purposes of this discussion, without deciding, that Plaintiff has adequately alleged retaliation in count III of his Complaint, Plaintiffs EEOC charge must be examined using the standards described above because the scope of Plaintiffs right to file a Title VII lawsuit is determined by the EEOC charge’s contents. The Court therefore turns to the EEOC charge.
Defendant attached a copy of Plaintiffs EEOC charge to the brief in support of its motion to dismiss. Plaintiff does not dispute the authenticity of the EEOC charge, and therefore the Court considers Defendant’s attachment as an accurate copy of the EEOC charge.
i. whether retaliation is explicitly stated in EEOC charge
Plaintiffs EEOC charge clearly described his allegations of race discrimination. However, nowhere in his EEOC charge does Plaintiff specifically allege or describe retaliation. The charge form provides an area for the claimant to check the appropriate boxes for the type of discrimination alleged. The “race” box on Defendant’s charge form was checked, but the “retaliation” box was not checked. However, the failure to check the “retaliation” box is not alone determinative of whether Plaintiffs EEOC charge can support the retaliation claim he asserts in his Complaint. Williams v. Mancom, Inc.,
I started to work for the [Defendant] on July 15, 2003, as an Assistant Vice President. Approximately June 2005, I was given the title of Vice President. On or about April 15, 2007, I became aware that I was not compensated as well as other Acquisition Vice Presidents who shared the same primary duties and responsibilities. On April 28, 2008, I was discharged allegedly for violating the Confidentiality Agreement when I disclosed the report, the Christmas Tree, to my attorney. After I was discharged, I did not receive the customary compensation given to other Vice Presidents for their period of non-compete after their discharge.
Steve Fredrickson, the CEO by way of his attorney [sic], stated that I did not have the same duties and responsibilities as the other Investment Committee Vice Presidents and they were paid higher prior to their employment with the [Defendant]. No reason was given to me about the less than customary discharge pay.
I believe I was paid less during my employment, given less of the customary compensation given to other Vice Presidents at the time of discharge and discharged in violation of Title VII of the Civil Rights Act of 1964, as amended, and in violation of the Virginia Human Rights Act, VA Code 2.2-3900, et seq., because of my race, Black.
(Mem. in Supp. Mot. to Dismiss, Ex. A, Docket No 10.) The plain language of the EEOC charge does not explicitly describe or allege retaliation.
While the EEOC charge “retaliation” box is not checked, and Plaintiff never directly and specifically describes retaliation in his charge, he argues, among other things, that he amended the original charge. Plaintiff seemingly realized that
In evaluating post-charge communications to the EEOC by a complainant, the Fourth Circuit has noted that “it would be objectively illogical to view a private letter from a complaining party to the EEOC as constructively amending a formal charge, given that one of the purposes of requiring a party to file charges with the EEOC is to put the charged party on notice of the claims raised against it.” Sloop v. Memorial Mission Hosp., Inc.,
In this case, even if Plaintiff did contact the EEOC investigator and request that the retaliation box of the charge form be checked, his actions do not indicate that the charge was formally amended so as to put the Defendant on notice of the claims raised against it and give Defendant the opportunity to rebut the charges during the EEOC process. In fact, Defendant claims that it never had an opportunity to address this issue before the EEOC. As in Sloop, such deficiency is fatal to Plaintiffs claim. Id.; Miles v. Dell,
ii. whether the retaliation claim related to or grew out of the EEOC charge
Having determined that Plaintiff failed to explicitly state a retaliation claim in the initial EEOC charge, and is therefore precluded from proceeding with a retaliation claim under the first option identified by the Fourth Circuit in Evans (a claim “stated in the initial charge”), the question remains whether Plaintiff can proceed with his retaliation claim under the alternative option identified in Evans by showing his claim of retaliation was a “kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the ease before the Commission.” Jones,
In support of his assertion that he can pursue a retaliation claim, even though not explicitly alleged in his EEOC charge, Plaintiff cites Nealon v. Stone for the proposition that “a plaintiff may raise the retaliation claim for the first time in federal court.”
Plaintiff also brought the recent Jones decision to the Court’s attention. In Jones, the Fourth Circuit found that the plaintiff had exhausted her administrative remedies where her retaliation claim was reasonably related to allegations included in an EEOC charge. Jones,
In light of these cases, the Court must determine whether Plaintiffs retaliation claim could be like or reasonably related to and growing out of allegations included in the EEOC charge.
aa. racial discrimination claim in EEOC charge
Plaintiff unquestionably alleges racial discrimination in his EEOC charge. However, the Fourth Circuit cases relied upon by Plaintiff, Nealon and Jones, do not persuade the Court that Plaintiff should be permitted to bring a retaliation claim merely because he has adequately exhausted his administrative remedies as to his racial discrimination claim. Here, unlike Nealon, Plaintiff does not allege retaliation for having filed an EEOC charge. In fact, Plaintiff was terminated before he filed his EEOC charge. Furthermore, unlike Jones, there is no evidence that Defendant was on notice of a retaliation claim during the EEOC process. Instead, the facts of this case are more similar to Steward v. Gwaltney of Smithfield, Ltd.,
Similar to the facts of Steward, in this case, Plaintiff failed to allege retaliation discrimination in his EEOC charge, which did reflect a race discrimination charge. Therefore, like Steward, Plaintiffs retaliation claim would not have been reasonably related to or growing out of any racial discrimination alleged in the EEOC charge.
bb. allegations of protected activity
Having determined that Plaintiffs retaliation claim “is not like or related to allegations [of racial discrimination] contained in the charge and growing out of such allegations,” Jones,
With respect to asserted protected activity number one (complaints of racial discrimination), nowhere in his EEOC charge does Plaintiff allege that he complained to Defendant about any type of race discrimination before his termination. Such an allegation of opposition activity might have led one to believe that Plaintiffs discharge could have been retaliation discrimination; however, the EEOC charge is totally bereft of allegations of any such complaints. Instead, Plaintiff alleges in his EEOC charge that he simply “became aware” of the differences in compensation between Plaintiff and other employees, and he later states he believes he was compensated less due to race discrimination. Therefore, asserted protected activity number one was not alleged in the EEOC charge, and cannot form the basis of Plaintiffs retaliation charge.
Similarly, regarding asserted protected activity number two (retaining an attorney to seek redress), Plaintiff also did not allege in the EEOC charge that he had retained an attorney to explore his potential race discrimination claims, and that the employer was aware of such conduct, such that his employer may have retaliated against him due to his participation in the protected activity of potential litigation. At best, the EEOC charge indicates that Plaintiff had hired an attorney, but the EEOC charge does not indicate that such attorney was hired to pursue potential race discrimination claims or that the employer was aware of such intent. Therefore, asserted protected activity number two was not alleged and cannot form the basis of Plaintiffs retaliation claim.
Sharing confidential documents, asserted protected activity number three, does appear to be explicitly alleged in the EEOC charge. However, sharing confidential documents in this situation (as alleged in the Complaint, which determines the scope of Plaintiffs retaliation claim) does not constitute protected activity, as discussed later in this Opinion and Order with respect to Plaintiffs claim of retaliation under § 1981. Because sharing confidential documents in this case did not constitute protected activity, it cannot form the basis of Plaintiffs retaliation claim.
Finally, asserted protected activity number four (internal investigation participation) is also not alleged because the EEOC charge does not reflect any internal investigation by Defendant. A strained interpretation of the second paragraph of the EEOC charge, which reflects the reasons allegedly given to Plaintiff regarding the pay differences, could indicate that an internal investigation of some sort occurred, although there is no indication as to whether such investigation would have been regarding complaints of racial discrimination or merely pay differences. Even if plaintiff had alleged an internal investigation about racial discrimination in his EEOC charge, which he has not, such an internal investigation does not constitute protected participation activity, as discussed more fully below with respect to Plaintiffs retaliation claim under § 1981.
By failing to allege explicit retaliation in his EEOC charge, or retaliation “like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the [EEOC],” Evans,
2. count IV — retaliation under § 1981
Plaintiff also alleges retaliation based on 42 U.S.C. § 1981. CBOCS West, Inc. v. Humphries,
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a). From the express language of the statute, and from its historical context as a post-Civil War civil rights act, it is evident that § 1981 prohibits race discrimination against African-Americans. Dennis,
Defendant argues that count IV of the Complaint must be dismissed for failure to state a claim because Plaintiff did not allege in the Complaint (rather than the EEOC charge) that he engaged in protected activity.
i. asserted instance of protected activity one
With respect to asserted protected activity number one (complaining of racial discrimination), Plaintiff did not allege enough facts in his Complaint for the Court to consider complaints of racial discrimination as a protected activity. In paragraph 102 of the Complaint, Plaintiff states as follows:
Defendant, PRA, by and through its employees, agents, and officers, including supervisory employees, intentionally, willfully, and wantonly retaliated against Mr. Johnson in response to Mr. Johnson’s complaints of the unlawful racial discrimination, in that Mr. Johnson was terminated, subsequent to Mr. Johnson retaining and sharing relevant or potentially relevant information with an attorney to pursue race discrimination claims, which are protected activity under Title VII.
(Compl. ¶ 102, emphasis added, Docket No. 1.) The reference in paragraph 102 of the Complaint is the only mention that Plaintiff complained of racial discrimination.
The Court will not assume that Plaintiff made complaints of racial discrimination to his employer on the basis of vague references in the Complaint. Such conclusory allegations, without corresponding supporting facts, are insufficient to give fair notice to Defendant and to make Plaintiffs claim plausible on its face. Jordan v. Alternative Res. Corp.,
As noted above, Plaintiffs opposition brief included assertions of additional specific discussions that Plaintiff had with his superiors and Defendant’s general counsel, but such discussions are not mentioned in the Complaint. Furthermore, persons to whom Plaintiff purportedly complained of racial discrimination are never named in the Complaint. Therefore, because such allegations were not included in the Complaint, they will not be considered in deter
During oral argument, Plaintiffs counsel requested leave to amend the Complaint in order to address this deficiency. At this time, however, the Court will not consider assertions in Plaintiffs brief, about complaints to the Defendant of racial discrimination, as protected activity because such claims are not contained in the Complaint.
ii. asserted instance of protected activity two
Similarly, with respect to asserted protected activity number two (hiring attorney), Plaintiff has not sufficiently alleged that he hired an attorney to pursue racial discrimination claims and that Defendant was on notice of his intent to seek redress. Such allegations could constitute protected activity. The only reference in the Complaint to the reason Plaintiff hired an attorney is contained in the phrase: “retaining and sharing relevant or potentially relevant information with an attorney to pursue race discrimination claims.” (Compl. ¶ 102, emphasis added, Docket No. 1.) Again, no further details are provided. Prior to that point in the Complaint, other references to Plaintiffs counsel provide no details as to why Plaintiff hired an attorney and whether Defendant was notified that Plaintiff intended to seek redress for racial discrimination. Once again, Plaintiff did not, in his Complaint, allege enough facts for his § 1981 retaliation claim to be “plausible on its face,” Bell Atlantic,
While the Court is capable of reading between the lines and speculating, it would be a strained interpretation of the Complaint’s allegations to say that one could infer that Plaintiff hired his attorney in order to assert a race discrimination claim. This is a nuanced area of retaliation law that turns on the specific facts of the Complaint. For example, a plaintiff who retains an attorney, and has that attorney notify the employer of the plaintiffs intent to file a suit, engages in protected opposition activity. See Sprott v. Franco, No. 94 Civ. 3818(PKL),
The Complaint does not provide facts to support Plaintiffs conclusory allegation that he was retaliated against for hiring his attorney to pursue racial discrimination and notifying Defendant of his intent to seek redress. Jordan,
iii. asserted instance of protected activity three
The clearest argument that Plaintiff has made with respect to allegations of protected activity is with respect to asserted instance of protected activity number three, which is sharing confidential business information with an attorney. Plaintiff specifically bases his count IV claim of retaliation upon his actions of “retaining and sharing relevant or potentially relevant information with an attorney to pursue race discrimination claims,” which he argues in his brief constitutes protected “opposition” activity. (Compl. ¶ 102, Docket No. 1.)
The opposition clause of Title VII forbids discrimination against an employee who has “opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). An employee does not have to engage in the formal Title VII process of adjudicating a discrimination claim in order for her actions to qualify as opposition activity. Laughlin v. Metro. Washington Airports Auth.,
“To determine whether an employee has engaged in legitimate opposition activity, [the Fourth Circuit requires the trial court to] employ a balancing test” which “balance[s] the purpose of the Act to protect persons engaging reasonably in activities opposing ... discrimination, against Congress’ equally manifest desire not to tie the hands of employers in the objective selection and control of personnel.” Id. (internal citation and quotation marks omitted). In this case, the Court must determine whether Plaintiffs sharing of confidential documents in violation of company policy is protected activity under the opposition clause, such that responsive adverse employer action could be considered § 1981 retaliation.
Here, the Court finds that the six factors analyzed by the Sixth Circuit in Niswander are also helpful in applying the Fourth Circuit’s balancing test and in determining whether Plaintiffs disclosure of Defendant’s confidential material was reasonable so as to constitute opposition activity. Factor one (how document obtained) weighs in Plaintiff’s favor as the document that he shared with his attorney was apparently properly in his possession, and he did not surreptitiously acquire such information. Factor two (to whom document produced) also weighs in Plaintiffs favor, but only slightly. Similar to Niswander, Plaintiff only shared Defendant’s confidential document with his attorney, which is “less problematic than giving them to a fellow employee.” Id. at 727. However, also similar to Niswander, Plaintiff had “alternative means to inform [his counsel] of the alleged [discrimination],” so his behavior also cannot be condoned simply because he only disclosed the document to his attorney. Id. It is difficult for the Court to weigh factor three (contents of document) given that the Court has not actually seen the confidential document in question. However, the Court notes that the information disclosed in the report allegedly contains “material non-public financial information of a publicly traded company, the disclosure of which could result in a violation of federal securities law.” (Def.’s Reply Br. 8, Docket No. 17.) Plaintiffs brief in opposition notes that the document “showed performance of [Plaintiff] and his colleagues” ... and showed “each coded portfolio revenues, performance in comparison to expectation, and cost and investment, and it enables the plaintiff to show the value of each deal and the contribution of the plaintiff and his comparators.” (Pl.’s Opposition Br. 13, Docket No. 15.) Although such information may be relevant to Plaintiffs claim of unlawful conduct, it seems clear the Defendant has a “legitimate and substantial interest in keeping” such information confidential.
The fourth factor (why documents produced) weighs against Plaintiff because he voluntarily produced the document in question to his attorney, rather than producing it in discovery or as a part of the normal litigation process. The fifth factor (scope of employer’s privacy policy) is also difficult for the Court to weigh because the Court has not been provided with Defendant’s privacy policy, and therefore cannot determine the scope of said policy. However, it is the sixth factor (ability to pre
In applying the balancing test as expressed by the Fourth Circuit, the Court finds that Plaintiffs act of sharing Defendant’s confidential information with his attorney is not protected activity covered by the opposition clause. Therefore, asserted instance of protected activity number three cannot serve as the basis for Plaintiffs retaliation claim.
iv. asserted instance of protected activity four
Finally, the Court addresses Plaintiffs claim of his participation in an internal investigation, which he argues constitutes protected participation activity. As discussed above, Title VII forbids discrimination against an employee who “has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under [Title VII],” which is known as the “participation clause.” 42 U.S.C. § 2000e-3(a). In Plaintiffs opposition brief to this motion to dismiss, he asserts that his actions are covered by the participation clause because he complained to several of the Defendant’s employees that he believed he was being discriminated against on the basis of race, which subsequently led Defendant to investigate such claims. However, as addressed above, Plaintiff did not sufficiently allege in his Complaint that he complained of race discrimination in his discussions with his superiors about his lower pay, or that an internal investigation took place. As previously noted, the Complaint mentions alleged retaliation “in response to [Plaintiffs] complaints of the unlawful racial discrimination.” (Compl. ¶ 102, Docket No. 1.) While a strained interpretation of the Complaint could lead one to speculate that Defendant may have conducted an internal investigation of some sort, it is not clear whether such investigation would have been related to racial discrimination or merely differences in pay.
Even if the Court assumed that an investigation resulted from Plaintiffs asserted complaints of racial discrimination, Plaintiff has still not alleged any protected activity falling within the protection of the participation clause, which clause Plaintiff suggests covers this purported internal investigation. Again, the participation clause in Title VII prohibits an employer from retaliating against an employee who “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). Such “[participatory activities are vigorously protected to ensure employees’ continuing access to the EEOC and the enforcement process.” Laughlin,
In this case, Plaintiff argues that his participation in an internal investigation (which was not alleged in the Complaint, but was argued in his opposition brief) constitutes protected activity under the participation clause and cites Clover v. Total Sys. Servs., Inc.,
Unlike Clover, Plaintiffs participation in any asserted internal investigation by Defendant prior to termination is not protected activity under the participation clause because any such asserted internal investigation must have occurred prior to, and therefore unrelated to, the filing of any EEOC charge. See Vasconcelos,
Because Plaintiff has not sufficiently alleged that he engaged in protected activity under either the participation or the opposition clause, Defendant’s Motion to Dis
B. Race discrimination claims
Defendant argues that Plaintiffs race-based compensation discrimination claims are time barred to the extent the alleged discriminatory decisions were made more than 300 days prior to filing his EEOC charge (with respect to his Title VII claim) or more than four years prior to filing this lawsuit (with respect to the § 1981 claim). The Court addresses each of these arguments in turn.
1. count I — race discrimination under Title VII
As discussed above, Plaintiff was required to file an EEOC charge before pursuing a Title VII claim. 42 U.S.C. § 2000e-2(a)(l). Such a charge must be filed with the EEOC within 180 days of any alleged unlawful employment practice or 300 days in states where there is an agency with authority to grant or seek relief from any such practices. 42 U.S.C. § 2000e-5(e)(l). Virginia has its own enforcement agency; therefore, the charge must be filed within 300 days “after the alleged unlawful employment practice occurred.” 42 U.S.C.2000e-2(a)(l); see also Tinsley v. First Union Nat’l Bank,
The Supreme Court has previously found that “[discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges” and “each discrete discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan,
Until recently, Plaintiff could not recover damages for wage discrimination based on discrete acts of discrimination occurring prior to July 17, 2007 under Title VII. However, the limitations period applicable in wage discrimination cases was recently altered by Congress. On January 29, 2009, President Obama signed the “Lilly Ledbetter Fair Pay Act of 2009” (the “FPA”), Pub.L. No. 111-2, 123 Stat. 5. The FPA was the Congressional response to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618,
Congress responded by explaining in the FPA that the “Ledbetter decision undermines ... [statutory protections against discrimination] by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.” 123 Stat. 5. Congress therefore amended, through the FPA, the Title VII provisions in Section 706(e) (42 U.S.C. § 2000e-5(e)) with respect to the statutory charging period by adding the following provisions, Section 706(e)(3)(A) & (B):
(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C.1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
Id. at 5-6. Furthermore, the FPA “take[s] effect as if enacted on May 28, 2007 and applfies] to all claims of discrimination in compensation under Title VII ... that are pending on or after that date.” Id. at 7. Therefore, the FPA applies to the compensation discrimination claim in this case.
The FPA triggers anew the 300 day clock for filing a Title VII discriminatory compensation claim with each discriminatory pay period. A plaintiff who has filed a timely EEOC charge for at least one instance of pay discrimination can recover back pay for pay discrimination that occurred in the two years prior to the filing of the EEOC charge, if the discrimination that occurred outside the charge period is “similar or related to” the unlawful practice in the timely-filed EEOC charge. Id. at 6. In this case, at least one unlawful employment action (discriminatory pay) must have occurred on or after July 17, 2007, which was 300 days prior to the May 12, 2008 EEOC charge filed by Plaintiff. If an unlawful employment action occurred on or after July 17, 2007, Plaintiff can recover back pay for other
Defendant argues in its brief (which was filed prior to the enactment of the FPA) that Plaintiff did not specifically allege when the decisions were made with respect to his compensation, so it cannot be determined whether Plaintiffs claims are timely. However, Defendant now acknowledges that the recently enacted FPA has changed the law applicable to Title VII wage discrimination claims. During oral argument, Defendant’s counsel agreed that Plaintiff has sufficiently alleged that he received a discriminatory paycheck within the 300 days prior to filing his EEOC charge. Therefore, Plaintiff has adequately pleaded count I of the Complaint, and Defendant’s Motion to Dismiss count I is therefore DENIED.
2. count II — race discrimination under § 1981
Defendant also contends that Plaintiffs wage discrimination claims under § 1981 are time barred. Title VII and § 1981 cases are frequently analyzed under the same framework. However, § 1981 was not one of the statutes amended by Congress in the FPA.
Defendant argues that the Supreme Court’s decision in Ledbetter operates to also limit § 1981 wage discrimination claims in that only compensation decisions made within the four year period prior to filing a lawsuit are timely discrimination claims under § 1981. In support, Defendant cites Paul v. Wyeth Pharm,., Inc., No. 07 Civ. 950(CLB),
Defendant has raised the affirmative defense of the statute of limitations, which may be raised under Rule 12(b)(6) only when it clearly appears on the face of the Complaint. Richmond, Fredericksburg & Potomac R.R.,
The affirmative defense regarding the statute of limitations does not clearly appear on the face of the Complaint. Therefore, all that is required at this stage of the litigation is for the Court to decide whether it is clear, after accepting the allegations in the Complaint and all reasonable inferences, that Plaintiff is unable to prove any set of facts to support his claim. Edwards v. City of Goldsboro,
Until discovery takes place, it is difficult to know when any pay decisions were made with respect to the allegations above. Richmond, Fredericksburg & Potomac R.R. Co. v. Forst,
C. Motion to Amend the Complaint
During oral argument, Plaintiff moved to amend the Complaint. Defendant opposed such amendment, claiming that such an amendment would be prejudicial due to
Plaintiff was terminated from his employment on April 28, 2008. He filed his EEOC charge on May 12, 2008, and the EEOC issued a Notice of Right to Sue on November 21, 2008. Plaintiff then filed his Complaint beginning this litigation on November 24, 2008. Defendant filed its motion to dismiss on December 19, 2008, and then also filed a supplemental brief (with leave of court) on March 6, 2009. This summary of the procedural history of this case indicates that the matter has not been pending for an extremely lengthy period of time.
Federal Rule of Civil Procedure 15(a) provides that “[a] party may amend its pleading once as a matter of course ... before being served with a responsive pleading.” A motion to dismiss is not a “responsive pleading” within the contemplation of Rule 15(a). Fed.R.Civ.P. 7(a); Vanguard Military Equip. Corp. v. David B. Finestone Co.,
IV. Conclusion
For the above reasons, the Motion to Dismiss counts III and IV filed by Defendant is GRANTED, and the Motion to Dismiss counts I and II is DENIED. Plaintiffs oral Motion to Amend the Complaint is GRANTED, and Plaintiff is ORDERED to file his amended Complaint ten (10) days following the date of this Order.
Defendant is REMINDED that, pursuant to Federal Rule of Civil Procedure 12(a)(4)(A), a responsive pleading is due ten (10) days after the denial of a motion to dismiss, unless another time is set by court order. In this ease, because the Court has granted the Plaintiffs Motion to Amend the Complaint, Defendant is ORDERED to file a motion or responsive pleading ten (10) days following the date Plaintiffs amended Complaint is filed.
Counsel are DIRECTED to contact the courtroom deputy at (757) 222-7213 to schedule the Rule 16(b) scheduling conference and trial. The parties are also directed to contact the courtroom deputy for United States Magistrate Judge F. Bradford Stillman at (757) 222-7222 to schedule a settlement conference date close to the conclusion of their discovery deadline.
IT IS SO ORDERED.
Notes
. The facts recited here are facts drawn from the allegations set forth in the Complaint, and such facts are assumed for the purpose of deciding the motion currently before the Court. However, the facts recited here are not factual findings for any purpose other than consideration of the instant motion.
. Letters are not pleadings and are generally not filed as pleadings unless the Court so orders.
. Here, the Court does not convert the motion and therefore does not consider any of the
. In his opposition to this motion to dismiss, Plaintiff attached a copy of the letter Plaintiff’s counsel sent to the EEOC investigator on September 29, 2008. This letter was apparently in response to the Defendant’s response of June 6, 2008 to the Plaintiff's EEOC charge. The September 29, 2008 letter from Plaintiff's counsel to the EEOC investigator references Plaintiff's "EEOC Charge No. 437-2008-00893, as amended (‘EEOC Charge'), which alleges discrimination on the basis of race and retaliation.” (Def.'s Br., Ex. 2,
. Plaintiff did not submit any further details regarding his alleged attempts to have his EEOC charge revised to reflect his retaliation claim, such as copies of the emails he allegedly sent to the EEOC investigator or dates of the alleged telephone calls he made to the EEOC investigator.
. Plaintiff also suggests that his counsel’s letter to the EEOC investigator, dated September 29, 2008, raised the issue of retaliation. However, Defendant argues that it never received the letter, never knew the issue of retaliation was raised, and that, to the extent they might have been advised of any such allegation during an EEOC investigation, they never had the opportunity to respond because Plaintiff terminated the EEOC’s investigation by requesting an early notice of right to sue. The September 29, 2008 letter to the EEOC investigator from Plaintiff's counsel does reference an alleged retaliation claim, but the letter does not reflect that it was copied to Defendant or Defendant’s counsel, and Defendant's counsel asserted at oral argument that the EEOC will not provide employers with a copy of such letters/employee responses from its file. There is no other evidence before the Court that might suggest the employer was on notice of a retaliation claim during the EEOC process, such as a copy of Defendant’s letter to the EEOC investigator, apparently dated June 6, 2008, responding to the charges (as referenced in Plaintiff's counsel's letter dated September 29, 2008), or any evidence from
. This language from Jones is nothing more than a summation of the "reasonably related” and "reasonable investigation” components of the Evans test. Evans,
. In analyzing this issue, the Court assumes for purposes of this count III, without deciding, that such retaliation allegations were sufficiently alleged in the Complaint.
. The typical retaliation claim found in Title VII case law involves the termination of an employee after the filing of an EEOC charge. Here, however, Plaintiff had already been terminated at the time he filed the EEOC charge. Since he did not check the ''retaliation” box on the EEOC charge form, and since he did not describe any retaliation allegedly motivated by race, one must wonder whether Plaintiff is trying to allege post-termination retaliation. However, while it is possible for an employee to be subjected to retaliation after termination, and Plaintiff's EEOC charge actually contains allegations that he did not receive the same compensation traditionally given to other employees after termination, Plaintiff does not make such allegations in his Complaint. See Ishkhanian v. Foirester Clinic S.C., No. 02 C 9229,
Furthermore, because termination occurred on April 28, 2008, several weeks before Plaintiff filed his May 12, 2008 EEOC claim, Plaintiff would presumably have known about and been able to allege any retaliation through the date he filed such EEOC charge. However, whether he was trying to allege retaliation based on termination or post-termination discrimination, Plaintiff never directly alleged in the EEOC charge that he was retaliated against by reason of engaging in an activity protected by Title VII. Similar to the plaintiff in Steward, who knew of the alleged retaliation discrimination at the time he filed his EEOC charge alleging race discrimination, the retaliation discrimination Plaintiff alleges in the Complaint purportedly took place before Plaintiff filed his EEOC charge. Plaintiff's Title VII retaliation claim cannot be saved by allegations of post-termination retaliation that he was aware of but did not include in his EEOC charge. The retaliation Plaintiff attempts to allege in his Complaint occurred before Plaintiff filed his EEOC charge, so his EEOC charge should have included such claim.
. The Court is aware that a case from the Western District of Virginia reached an opposite result, allowing a retaliation claim that was not included in the EEOC charge form. In Carter v. Rental Unif. Serv. of Culpeper, Inc., the plaintiff filed a lawsuit alleging retaliation discrimination, even though she only expressly alleged in her EEOC complaint that she was terminated based on race.
. Plaintiff has argued that Defendant's alleged internal investigation constitutes pro
. A plaintiff must have exhausted administrative remedies through the statutory process before bringing suit under Title VII. Therefore, for Title VII claims, the Court looks to the EEOC charge to determine whether administrative remedies have been exhausted. § 1981 claims, on the other hand, do not require administrative remedies to be exhausted, so the EEOC charge is irrelevant to § 1981 claims. Therefore, the Court looks only to the allegations of the Complaint in analyzing § 1981 claims.
. The Court will address below Plaintiff's Motion to Amend the Complaint that was made during oral argument.
. For the same reasons that the Court has dismissed count IV of the Complaint, count III of the Complaint would have also been dismissed for failure to state a claim if count III had survived the motion to dismiss for lack of subject matter jurisdiction.
. The FPA also amends the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973. See 123 Stat. 5, 6-7.