Veliaminov v. P.S. Business Parks

Filing 14

MEMORANDUM OPINION re: 6 MOTION to Dismiss by P.S. Business Parks. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 4/17/12. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

SERGI VELIAMINOV

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Plaintiff,
v.
P.S. BUSINESS PARKS
Defendant.

1:12cv142 (JCC/JFA)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant Public
Storage Business Parks’ Motion to Dismiss.

[Dkt. 6.]

For the

following reasons, the Court will deny Defendant’s Motion.
I.

Background

Plaintiff pro se Sergei Veliaminov brings a Complaint
against his former employer, Public Storage Business Parks,
alleging violations of Title VII of the Civil Rights Act of 1964
and the Age Discrimination in Employment Act of 1967.

Mr.

Veliaminov asserts that during his employment with Public
Storage Business Parks (PSBP) from February 22, 2000, until
February 20, 2010, PSBP committed national origin discrimination
and age discrimination.
[Dkt. 1] ¶¶ 1-6.)1

(Compl. Detail [Dkt. 1] ¶ 1; Compl.

Mr. Veliaminov’s allegations involve the

following topics: reasons why his employment with PSBP was
1

Plaintiff filed “Detailed Explanations for Complaint” with his Complaint, so
the Court cites each document accordingly. [See Dkt. 1.]

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terminated, invitations to PSBP social events, how PSBP valued
his life and safety, PSBP’s distribution of benefits and salary,
and PSBP’s references.

(Compl. ¶¶ 1-6.)

Plaintiff alleges that he filed a charge of
discrimination with the United States Equal Employment
Opportunity Commission (EEOC) on August 25, 2010.
1.)

(Compl. at

When Plaintiff filed his Complaint in the instant case on

February 13, 2012, he asserted that the EEOC had not concluded
its investigation, but that this Court had subject matter
jurisdiction because more than 180 days had passed since
Plaintiff filed his charge with the EEOC.

(Id.)

Plaintiff

submits he sent a request to obtain a right-to-sue letter on
February 23, 2012.
On February 29, 2012, the EEOC issued Plaintiff a
right-to-sue letter.

(Resp. [Dkt. 9] at 3.)

Also, on February

29, 2012, Defendant filed a Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1), arguing this Court is
without jurisdiction because Defendant filed his Complaint
without having obtained a right-to-sue letter.

[Dkt. 6.]

Plaintiff subsequently received the letter from the EEOC on
March 2, 2012.

(Resp. [Dkt. 9] at 1.)

Plaintiff included this

letter with his Response filed on March 9, 2012. [Dkt. 9.]
Defendant filed a Reply on March 14, 2012.

[Dkt. 10.]

Also, on

March 21, 2012, Plaintiff filed additional support in response

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to the Motion.

[Dkt. 11.]

The Court heard argument in the case

on April 6, 2012.
Defendant’s Motion is now before this Court.
II.

Standard of Review

A. Jurisdiction
Pursuant to Rule 12(b)(1), a claim may be dismissed
for lack of subject matter jurisdiction.
12(b)(1).

Fed. R. Civ. P.

Defendants may attack subject matter jurisdiction in

one of two ways.

First, defendants may contend that the

complaint fails to allege facts upon which subject matter
jurisdiction may be based.

See Adams v. Bain, 697 F.2d 1213,

1219 (4th Cir. 1982); King v. Riverside Reg’l Med. Ctr., 211 F.
Supp. 2d 779, 780 (E.D. Va. 2002).

In such instances, all facts

alleged in the complaint are presumed to be true.

Adams, 697

F.2d at 1219; Virginia v. United States, 926 F. Supp. 537, 540
(E.D. Va. 1995).
Alternatively, defendants may argue that the
jurisdictional facts alleged in the complaint are untrue.
Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780.

In that

situation, “the Court may ‘look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’”

Virginia v. United States, 926 F.

Supp. at 540 (citing Capitol Leasing Co. v. FDIC, 999 F.2d 188,

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191 (7th Cir. 1993)); see also Adams, 697 F.2d at 1219; Ocean
Breeze Festival Park, Inc. v. Reich, 853 F. Supp. 906, 911 (E.D.
Va. 1994); Velasco v. Gov’t of Indonesia, 370 F.3d 393, 398 (4th
Cir. 2004) (holding that “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”).

In either circumstance, the

burden of proving subject matter jurisdiction falls on the
plaintiff.

McNutt v. Gen. Motors Acceptance Corp., 298 U.S.

178, 189 (1936); Adams, 697 F.2d at 1219; Johnson v. Portfolio
Recovery Assocs., 682 F. Supp. 2d 560, 566 (E.D. Va. 2009)
(holding that “having filed this suit and thereby seeking to
invoke the jurisdiction of the Court, Plaintiff bears the burden
of proving that this Court has subject matter jurisdiction”).
B. Pro Se Plaintiff
Complaints filed by pro se plaintiffs are construed
more liberally than those drafted by an attorney.
Kerner, 404 U.S. 519, 520 (1972).

See Haines v.

“However inartfully pleaded

by a pro se plaintiff, allegations are sufficient to call for an
opportunity to offer supporting evidence unless it is beyond
doubt that the plaintiff can prove no set of facts entitling him
to relief.”

Thompson v. Echols, No. 99-6304, 1999 U.S. App.

LEXIS 22373, at *3 (4th Cir. Sept. 15, 1999) (citing Cruz v.
Beto, 405 U.S. 319 (1972)).

While a court is not expected to

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develop tangential claims from scant assertions in a complaint,
if a pro se complaint contains potentially cognizable claims,
the plaintiff should be allowed to particularize those claims.
Id. (citing Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.
1985); Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965)).
Such liberal construction is not limited to the Complaint;
rather it is applied to all documents filed by pro se litigants.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (“A
document filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
(internal quotation marks and citation omitted)); Hill v.
Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (noting “the longstanding practice” that courts “construe pro se pleadings
liberally”).
III. Analysis
Defendant argues that this Court is without subject
matter jurisdiction because Plaintiff must obtain a right-to-sue
letter before proceeding to federal court.
7] at 2.)

(Def.’s Mem. [Dkt.

Defendant submits that failure to obtain the letter

before filing suit is reason alone to dismiss.
at 1-2.)

(Reply [Dkt. 10]

Defendant also submits that because Defendant filed

its Motion to Dismiss before Plaintiff received the EEOC’s

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right-to-sue letter, this Court must dismiss Plaintiff’s
Complaint.

(Reply at 2.)
Plaintiff counters that this Court has subject matter

jurisdiction because more than 180 days passed from the day he
filed his charge with the EEOC and the agency had not taken
action.

(Compl. at 1.)

Thus, he submits he was entitled to a

right-to-sue letter from the EEOC.

(Resp. at 1.)

Plaintiff

also contests Defendant’s interpretation of the necessary timing
of receipt of a right-to-sue letter, pointing out that he now
has the letter and arguing that he contacted the EEOC to obtain
the right-to-sue letter prior to filing the Complaint, but did
not receive the letter in time.
A.

(Resp. [Dkt. 9] at 1.)

Title VII
i.

Exhaustion of Administrative Remedies

“[A] failure by the plaintiff to exhaust
administrative remedies concerning a Title VII claim deprives
the federal courts of subject matter jurisdiction over the
claim.”

Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th

Cir. 2009) (citing Davis v. N.C. Dep't of Corr., 48 F.3d 134,
138-40 (4th Cir. 1995)).
under the ADEA.”

“The same is true of claims made

Id. at 300-01 (citing 29 U.S.C.A. § 626(d);

Vance v. Whirlpool Corp., 707 F.2d 483, 486-89 (4th Cir. 1983).)
Turning first to Title VII exhaustion, “42 U.S.C. §
2000e-5(f)(1) requires an individual to obtain a Notice of Right

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to Sue from the EEOC before bringing suit in a federal court on
a Title VII claim.”
(E.D. Va. 2002).

Marston v. AT&T Corp., 210 F.R.D. 573, 574

Specifically, the statute states:

If a charge filed with the Commission . . .
is dismissed by the Commission, or if within
one hundred and eighty days from the filing
of such charge or the expiration of any
period of reference . . . whichever is
later, the Commission has not filed a civil
action under this Section . . ., or the
Commission has not entered into a
conciliation agreement to which the person
aggrieved is a party, the Commission . . .
shall so notify the person aggrieved and
within ninety days after the giving of such
notice a civil action may be brought against
the respondent named in the charge.
42 U.S.C. § 2000e-5(f)(1).2

This notice is commonly referred to

as a “right-to-sue letter.”
“To

ensure that a plaintiff has exhausted all the

administrative remedies and adhered thereby to the Congressional
conciliation scheme, courts generally hold that the right-to-sue
letter is a jurisdictional prerequisite to a Title VII suit.”
White v. Fed. Express Corp., 729 F. Supp. 1536, 1551-52 (E.D.
Va. 1990) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 798 (1973)).

“But, because Title VII is a remedial

statute, courts usually construe its provisions generously to

2

The “administrative procedures [are] contained in 42 U.S.C. § 2000e-5(b),
which requires an investigation and determination by the EEOC as to whether
‘reasonable cause’ exists to believe that the charge of discrimination is
valid.” Ray v. Amelia Cnty. Sheriff's Office, 302 F.App’x 209, 212 (4th Cir.
Va. 2008).

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achieve its purpose.”

Id. (citing Henderson v. E. Freight Ways,

Inc., 460 F.2d 258, 260 (4th Cir. 1972) (per curiam).
Thus, the Fourth Circuit has “long held that receipt
of, or at least entitlement to, a right to-sue letter is a
jurisdictional prerequisite that must be alleged in a
plaintiff’s complaint.”

Davis, 48 F.3d at 140 (emphasis added).

In Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091, 1093 (4th
Cir. 1982), the Fourth Circuit held that, “[i]n our view, it is
entitlement to a ‘right to sue’ notice, rather than its actual
issuance or receipt, which is a prerequisite to the jurisdiction
of the federal courts under § 2000e-5(f)(1).”

The Court

explained, “[t]he Commission’s failure actually to issue the
notice cannot defeat the complainant’s statutory right to sue in
the district court, for ‘[a] Title VII complainant is not
charged with the commission’s failure to perform its statutory
duties.’”

Id. (citing Russell v. American Tobacco Co., 528 F.2d

357, 365 (4th Cir. 1975)).
The Fourth Circuit confirmed this principle in Moore
v. City of Charlotte, when it again found that “[e]ntitlement to
the letter, without actual receipt of it, is sufficient to
support federal jurisdiction.”

754 F.2d 1100, 1104 n. 1 (4th

Cir. 1985) (holding that plaintiff was permitted to maintain
Title VII suit despite the fact that the right-to-sue letter was
issued by the wrong government entity).

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“Perdue and Moore

establish that entitlement to the letter is sufficient. . .” and
“[t]his sensible principle . . . give[s] effect to the teaching
of Henderson that Title VII be generously construed to achieve
its important goal of providing a remedy for [] discrimination
in employment.”

White, 729 F. Supp. at 1552.

Thus, Defendant

errs when it suggests that a complaint filed before receipt of
an EEOC right-to-sue letter must always be dismissed.
Here, Plaintiff had not heard from the EEOC in well
over 180 days, which is to say the EEOC has not dismissed the
charge, filed a civil action, or entered into a conciliation
agreement with Plaintiff for more than 180 days.

Thus, pursuant

to 42 U.S.C. § 2000e-5(f)(1), Plaintiff was entitled to a rightto-sue letter regarding his Title VII claims at the time he
filed the Complaint in this Court.

Thus, this Court has subject

matter jurisdiction over Plaintiff’s Title VII claim.

ii.

Subsequent Receipt of Right-To-Sue Letter

Additionally, Plaintiff’s receipt of the right-to-sue
letter from the EEOC prior to dismissal cures any potential
defect.

Defendant relies on Worth v. Tyer, 276 F.3d 249, 255

(7th Cir. 2001) for the argument that Plaintiff’s receipt of a
right-to-sue letter cannot be considered because Defendant moved
to dismiss the Complaint three days before Plaintiff received
the EEOC right-to-sue notice.

(Reply at 2.)

In Worth, the

Seventh Circuit considered a slightly different factual
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situation in which a plaintiff filed a complaint without having
received a right-to-sue letter, but received the letter before
the defendants filed their motion to dismiss.

Id. at 259.

The

Court concluded that “defendants’ argument [to dismiss] fails
because it was not raised before [plaintiff] received the
October 21, 1996 right-to-sue letter.”

Id.

Similarly, the

Fourth Circuit in Henderson v. Eastern Freight Ways, Inc.,
stated “[w]hile up to the time this ‘suit-letter’ on the second
charge was issued the pending complaint of the employee was
properly subject to a motion to dismiss, the issuance of the
‘suit-letter’ validated the pending action, based on the second
charge against both union and employer, and the District Court
erred in dismissing it.”

460 F.2d at 259.

Neither case, however, addressed the instant situation
where the letter was received after the motion to dismiss was
filed, but while the case was still pending, and in fact before
the response to the motion was filed.3

And, the Fourth Circuit

in Henderson, in addition to noting that the Act “should be
generously construed to achieve its purposes,” stated that “it
is a general a policy of law to find a way in which to prevent

3

Defendant also relies on Blake v. Burger King Corp., No. 3:10CV675, 2011
U.S. Dist. LEXIS 41721, at *3 (E.D. Va. April 18, 2011), where the Court
found that although plaintiff filed a charge of discrimination with the EEOC,
he failed to show he exhausted his administrative remedies with the EEOC and
failed to produce a right-to-sue letter from the EEOC. Neither is the case
here.

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loss of valuable rights, not because something was done too late
but rather before it was done too soon.”4

460 F.2d at 260.

Here the action remained pending and Plaintiff
received the letter in time to include it is its Response to the
Motion to Dismiss.

Thus, the Court concludes that any potential

pleading deficiency in the original complaint was cured when Mr.
Veliaminov received his right-to-sue letter.

See Miller v.

Balt. Gas & Elec. Co., 202 F.R.D. 195, 204-05 (D. Md. 2001)
(noting that the Fourth Circuit has never formally required an
amended complaint for the inclusion of a right-to-sue letter and
holding that the deficiency in the complaint was cured when
plaintiff received the letter).
B.

ADEA

Turning next to the ADEA, “[b]efore bringing a civil
action under the ADEA, a plaintiff must file a charge of
discrimination with the EEOC.”

Cross v. Suffolk City Sch. Bd.,

No. 2:11cv88, 2011 U.S. Dist. LEXIS 75970, at *22 (E.D. Va. July
14, 2011) (citing 29 U.S.C. § 626(d)(1); Jones, 551 F.3d at
300).

Specifically, 29 U.S.C.A. § 626(d)(1) states, “[n]o civil

action may be commenced by an individual under this section

4

Also, Wroth relies on earlier Seventh Circuit precedent that made clear that
the question is whether the right-to-sue letter was received prior to
dismissal. The Court found that “[w]hile [the claims] may have been subject
to dismissal at any time prior to [the plaintiff’s] receipt of a right-to-sue
letter, the receipt of that letter after the complaint had been filed, but
before it had been dismissed, effectively cured the deficiency in the
original complaint.” Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir.
1991) (citing, among others, Perdue, 690 F.2d at 1093; Henderson, 460 F.2d at
260).

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until 60 days after a charge alleging unlawful discrimination
has been filed with the Secretary [Commission].”

Here,

Plaintiff had not heard from the EEOC in well over 60 days from
the date the charge was filed.

Thus, the Court has subject

matter jurisdiction over Plaintiff’s ADEA claim.
IV.

Conclusion

For these reasons, the Court will deny Defendant’s
Motion to Dismiss.
An appropriate Order will issue.

April 17, 2012
Alexandria, Virginia

/s/
______________
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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