Washington v. Veritiss, LLC et al
Filing
17
MEMORANDUM OPINION re Motion to Dismiss. Signed by District Judge James C. Cacheris on 3/4/15. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
LISA WASHINGTON,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
VERITISS, LLC and
CARMEN POWELL,
Defendants.
M E M O R A N D U M
1:14cv1250 (JCC/TCB)
O P I N I O N
This employment discrimination action is before the
Court on Defendants’ Motion to Dismiss for Failure to State a
Claim, filed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
[Dkt. 11.]
For the following reasons, the
Court will grant the motion and dismiss the Complaint.
I. Background
At the motion to dismiss stage, the Court must
construe the complaint in the light most favorable to the
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
In October of 2009, Plaintiff Lisa Washington
(“Plaintiff”) was employed as an Executive Recruiter by
Defendant Veritiss, LLC (“Veritiss”).
(Compl. [Dkt. 1] ¶ 15.)
Defendant Carmen Powell (“Powell”) was, and apparently still is,
1
the Chief Executive Officer (“CEO”) of Veritiss.
(Id. at ¶ 14.)
In May of 2010, “Plaintiff requested a reasonable
accommodation due to her medical condition related to being
pregnant from her supervisor.”
(Compl. ¶ 20.)
Plaintiff’s
treating physicians identified Plaintiff’s need for a modified
work schedule as an accommodation at work.
(Id. at ¶ 79.)
Her
supervisor referred Plaintiff to Powell, who was “not pleased
with Plaintiff’s request for a reasonable accommodation . . .
[and] thereafter, began harassing and discriminating against
Plaintiff.”
(Id. at ¶¶ 21-23.)
Ultimately, Defendant’s denied
Plaintiff’s accommodation request for a modified work schedule.
(Id. at ¶ 24.)
Subsequently, Plaintiff was suspended from work, but
was later allowed to return.
(Compl. ¶¶ 26-27.)
On June 7,
2010, Powell terminated Plaintiff’s employment with Veritiss.
(Id. at 30.)
On June 30, 2010, “Plaintiff was notified that her
compensation, including severance pay and commission, which she
was due and owing, was being rescinded due to a false and
alleged violation of the non-disclosure agreement.”
32.)
(Id. at ¶
On July 20, 2010, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(“EEOC”).
(Id. at ¶ 33.)
On September 23, 2014, the then-pro se Plaintiff filed
a Complaint against Veritiss and Powell, alleging fifteen
2
counts, which range from employment discrimination claims under
Title VII and the Americans with Disabilities Act (“ADA”) to
various torts and contract claims under Virginia law.
Plaintiff
served the Complaint on both Defendants in late December of
2014.
[Dkts. 6, 7.]
On February 12, 2015, both local and pro
hac vice counsel entered an appearance on Plaintiff’s behalf.
[Dkts. 8, 9.]
The same day, Defendants filed the motion to
dismiss now pending before the Court.
(Defs.’ Mot. to Dismiss
[Dkt. 11]; Defs.’ Mem. in Supp. [Dkt. 12].)
Defendants ask that
the Court dismiss the Complaint in its entirety for failure to
state a claim upon which relief can be granted.
Plaintiff never filed a memorandum in opposition to
the motion to dismiss, which was otherwise due to be filed under
the local rules of this Court no later than February 26, 2015.
See E.D. Va. Local Civ. R. 7(F)(1); see also Fed. R. Civ. P.
6(d); Defs.’ Notice [Dkt. 16].
Defendants waived a hearing on
their motion to dismiss, and instead ask the Court to rule on
the briefs alone.
Thus, the matter is ripe for disposition.
II. Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [it] does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”
Butler v. United States, 702 F.3d
749, 752 (4th Cir. 2012) (citations and internal quotation marks
3
omitted).
A court reviewing a complaint on a Rule 12(b)(6)
motion must accept well-pleaded allegations as true, and must
construe all allegations in favor of the plaintiff.
See Randall
v. United States, 30 F.3d 518, 522 (4th Cir. 1994).
However,
the court need not accept as true legal conclusions disguised as
factual allegations.
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 679-81
Therefore, a pleading that offers only a “formulaic
recitation of the elements of a cause of action will not do.”
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557.
Nor will a
complaint that tenders mere “naked assertion[s]” devoid of
“further factual enhancement.”
Iqbal, 556 U.S. at 678; Twombly,
550 U.S. at 557.
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [a Rule 12(b)(6)
motion] does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Edwards
v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)
(citation omitted) (internal quotation marks omitted).
In the
relatively rare circumstance where sufficient facts are alleged
in the complaint to rule on an affirmative defense, the defense
may be reached by a motion to dismiss filed under Rule 12(b)(6).
This principle only applies, however, if all facts necessary to
the affirmative defense “clearly appear[ ] on the face of the
4
complaint.”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (emphasis is original).
III. Analysis
Defendants argue that all of the claims in the
Complaint should be dismissed either because the claim is timebarred by the applicable statute of limitation or because the
claim fails to state a claim upon which relief can be granted.
(Defs.’ Mem. at 3-16.)
motion to dismiss.1
Plaintiff has not opposed Defendants’
Regardless, the Court will address
Defendants’ arguments for each count of the Complaint in turn.
A. Claims Barred by the Statute of Limitations
Typically, “a defense based on the statute of
limitations must be raised by the defendant through an
1
Plaintiff has completely failed to respond to a dispositive
motion that could result in the dismissal of her case. Facing
similar puzzling situations, a number of district courts have
declared that a motion to dismiss may be properly granted
without reaching the merits of the motion, either treating the
plaintiff’s failure to respond as a concession that the motion
should be granted, or that dismissal is an appropriate sanction
for failure to respond. See, e.g., Osborne v. Long, No. 1:11cv-00070, 2012 WL 851106, at *10 n.5 (S.D. W. Va. Mar. 13, 2012)
(collecting cases). Specifically, “if a motion to dismiss is
granted solely because it has not been opposed, the case is
simply not being dismissed because the complaint failed to state
a claim upon which relief may be granted. Rather, it is
dismissed as a sanction[.]” Stackhouse v. Mazurkiewicz, 951
F.2d 29, 30 (3d Cir. 1991). Because there is no local rule in
this district that mandates dismissal as a sanction for failure
to respond, the Court declines to adopt one now, and instead,
the motion to dismiss will be considered on the merits. See
Blount v. Northrup Grumman Info. Tech. Overseas, Inc., No.
1:14cv919 (JCC/TCB), 2014 WL 5149704, at *3 (E.D. Va. Oct. 14,
2014).
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affirmative defense, see Fed. R. Civ. P. 8(c), and the burden of
establishing the affirmative defense rests on the defendant.”
Goodman, 494 F.3d at 464 (citations omitted).
This defense may
be reached on a motion to dismiss under Rule 12(b)(6), however,
“if all facts necessary to the affirmative defense clearly
appear on the face of the complaint.”
Id. (citations and
internal quotation marks and alterations omitted) (emphasis in
original).
Defendants argue that Counts Eight, Nine, Eleven,
and Thirteen through Fifteen should be dismissed as time-barred
by the statute of limitations.
agrees.
(Defs.’ Mem. at 3-5.)
The Court
Assuming these five counts state a claim for relief
under Virginia law, it is clear from the face of the Complaint
that each count discussed in detail below is barred by the
applicable statute of limitation.
In Count Eight, Plaintiff asserts a claim of
Defamation under Virginia law,2 which is governed by a one-year
statute of limitation.
(Compl. ¶¶ 15-16); see Va. Code § 8.01-
2
Plaintiff invokes this Court’s subject matter jurisdiction by
raising claims under federal law, namely, Title VII of the Civil
Rights Act of 1964 and the Americans with Disabilities Act.
(See Compl. ¶ 2.) In addition to claims under federal law,
Plaintiff also raises state law claims under Virginia law, and
there is no dispute that all parties are citizens of Virginia;
thus, there is no diversity of citizenship. (Id. at ¶¶ 4-7.)
However, the Court has subject matter jurisdiction over all
claims raised in the Complaint through pendent jurisdiction.
See United Mine Workers v. Gibbs, 383 U.S. 715, 724-25 (1966).
Stated differently, this Court has jurisdiction over the
Complaint because the federal claims and state claims allegedly
arise from a common nucleus of operative fact. Id.
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247.1 (“Every action for injury resulting from libel, slander,
insulting words or defamation shall be brought within one year
after the cause of action accrues.”).
Under Virginia law, a
cause of action for defamation accrues on the date that the
defamatory acts occurred.
(Va. 1998).
Jordan v. Shands, 500 S.E.2d 215, 218
Plaintiff filed the Complaint on September 23,
2014, and therefore any defamatory act giving rise to this claim
of defamation must have occurred on, or subsequent to, September
23, 2013.
Plaintiff claims that on June 30, 2010, after she was
terminated, her compensation, severance pay, and commission were
“rescinded due to a false and alleged violation of the nondisclosure agreement.”
(Compl. ¶ 32.)
Plaintiff goes on to
allege that Defendants’ false statements about her performance,
health, medical condition, and alleged violation of the nondisclosure agreement were communicated to others and that she
was injured as a result.
(Id. at ¶¶ 90-98.)
From the face of
the Complaint, the alleged defamatory act occurred on June 30,
2010.
Thus, it is clear that any cause of action for defamation
based on this threadbare recitation of facts accrued on the same
date, meaning the statute of limitation under Virginia law
expired on June 30, 2011.
Plaintiff was over three years late
when she filed her Complaint in September of 2014.
Therefore,
Count Eight will be dismissed as barred by the one-year statute
of limitation.
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Next, Plaintiff attempts to assert four counts
alleging various torts under Virginia law: “Misrepresentation”
in Count Nine (Compl. ¶¶ 99-104), Intentional Infliction of
Emotional Distress in Count Thirteen (id. at ¶¶ 119-125),
Negligent Infliction of Emotional Distress in Count Fourteen
(id. at ¶¶ 126-133), and Negligent Supervision in Count Fifteen
(id. at ¶¶ 134-138).
Under Virginia law, there is a two-year
statute of limitation to assert an action for a personal injury
tort.
See Va. Code § 8.01-243A (“Unless otherwise provided in
this section or by other statute, every action for personal
injuries, whatever the theory of recovery, and every action for
damages resulting from fraud, shall be brought within two years
after the cause of action accrues.”).
Assuming each of the four
counts listed above is a cause of action under Virginia law,3
these claims alleging a personal injury tort must have been
brought within two years from the date of injury, or when the
action accrued.
See Caudill v. Wise Rambler, Inc., 168 S.E.2d
257, 259 (Va. 1969) (“[A] plaintiff’s right of action for
damages for personal injuries does not accrue until he is
3
In the alternative, the Court would also dismiss the “negligent
misrepresentation” claim in Count Nine for failure to state a
claim upon which relief can be granted. See Lescs v. William R.
Hughes, Inc., 168 F.3d 482, 1999 WL 12913, at *10 (4th Cir. Jan.
14, 1999) (unpublished per curiam) (“[T]he federal courts of
this Circuit repeatedly have determined that Virginia does not
recognize a general cause of action for negligent
misrepresentation.”) (citation omitted).
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hurt.”).
30.)
Plaintiff was terminated on June 7, 2010.
(Compl. ¶
Any tort giving rise to the four claims must have occurred
before then, meaning at the very latest, the statute of
limitations for these claims expired on June 7, 2012; over two
years before Plaintiff filed her Complaint.
Accordingly, the
Court will dismiss Counts Nine, Thirteen, Fourteen, and Fifteen
as barred by the two-year statute of limitation period.
Lastly, Plaintiff asserts a breach of contract claim
in Count Eleven.
(Compl. ¶¶ 108-114.)
Plaintiff claims that
Defendants breached an employment agreement with Plaintiff due
to their allegedly tortious and discriminatory conduct.
(Id.)
While not entirely clear, the Court broadly and generously
construes this employment agreement in Plaintiff’s favor as an
unwritten contract between the parties.
(See id. at ¶ 109 (“The
terms and conditions of Plaintiff[’s] employment were governed
by custom, course of dealing between the parties, past practice,
company policy, oral representations, and/or an employee
handbook, all of which constituted an employment agreement
between Plaintiff and Defendants.”).
Such a claim for breach of
contract is governed by a three-year statute of limitation
period under Virginia law.
See Va. Code § 8.01-246(4) (“In
actions upon any unwritten contract, express or implied, within
three years.”).
Plaintiff’s allegations that constitute
Defendant’s alleged breach of the employment agreement all must
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have occurred between October of 2009 and June of 2010 when her
employment was terminated.
Thus, any cause of action for breach
of contract expired on June 7, 2013, over one year before she
filed this action.
Accordingly, the Court will also dismiss
Count Eleven as barred by the statute of limitations.
B. Failure to State a Claim
Defendants argue that the remaining nine counts should
be dismissed for failure to state a claim upon which relief can
be granted under Rule 12(b)(6).
(Defs.’ Mem. at 6-16.)
First,
the Court will address the two remaining counts brought under
Virginia law, and then the Court will address the counts brought
under federal law.
1. Remaining Claims under Virginia Law
In Count Ten, Plaintiff asserts a claim for “Tortious
Interference” against Defendants “MACRO” and “Wilson,” claiming
they have “violated the State of Virginia tort laws and
tortuously interfered with Plaintiff’s business, economic and
contractual relations.”
(Compl. ¶ 105.)
Under Virginia law,
the necessary elements of a tortious interference with contract
or business expectancy claim are: “(1) the existence of a valid
contractual relationship or business expectancy; (2) knowledge
of the relationship or expectancy on the part of the interferor;
(3) intentional interference inducing or causing a breach or
termination of the relationship or expectancy; and (4) resultant
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damage to the party whose relationship or expectancy has been
disrupted.”
Chaves v. Johnson, 335 S.E.2d 97, 102 (Va. 1985).
First, Plaintiff brings Count Ten against Defendants “MACRO” and
“Wilson,” who are not named Defendants in this lawsuit.
Second,
the Complaint contains no facts that, if true, would support
each of the necessary elements discussed above.
In short, this
claim is at best vague, if not entirely incomprehensible.
Accordingly, the Court will dismiss Count Ten for failure to
state a claim upon which relief can be granted.
Next, in Count Twelve, Plaintiff asserts a claim for
“Breach of Covenant of Good Faith and Fair Dealing” and alleges
that “Defendants [have] violated the State of Virginia tort laws
and misrepresented various facts and breached the covenant of
good faith and fair dealing to Plaintiff[] by discriminating
against all Plaintiff[] as well as harassing them, breaching
their respective employment agreements.”
(Compl. ¶ 115.)
“A
breach of the implied duty of good faith and fair dealing must
be raised in a claim for breach of contract, as opposed to a
claim in tort.”
Stoney Glen, LLC v. S. Bank and Trust Co., 944
F. Supp. 2d 460, 465-66 (E.D. Va. 2013) (citing Charles E.
Brauer Co., Inc. v. NationsBank of Va., N.A., 466 S.E.2d 382,
385 (1996)).
The elements of breach of the implied covenant of
good faith and fair dealing include (1) a contractual
relationship between the parties and (2) a breach of the implied
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covenant.
Id. at 466 (citations omitted).
Here, Count Twelve
wholly fails to plead facts that would give rise to any possible
relief under such a claim.
First, Plaintiff pleads Count Twelve
as a tort claim, and Virginia law does not recognize a tort of
this nature.
Second, Plaintiff fails to plead facts that if
taken as true would give rise to relief under this claim.
Assuming a contractual relationship between the parties, and
assuming this count were plead under a theory of breach of
contract and not tort, there is no allegation of dishonesty, bad
faith, or misrepresentation regarding contractual rights, as
required by the cause of action under Virginia law.
Id.
Accordingly, the Court will also dismiss Count Twelve for
failure to state a claim upon which relief can be granted.
2. Claims under Federal Law
In the remaining Counts of the Complaint, Counts One
through Seven, Plaintiff attempts to plead claims of disability
and sex discrimination under Title VII of the Civil Rights Act
of 1964, the Virginia Humans Rights Act, and the Americans with
Disabilities Act.
(Compl. ¶¶ 37-89.)
Upon reading the entirety
of the Complaint, however, it is clear that Plaintiff wholly
fails to plead facts with any specificity under these counts
that would entitle her to any relief.
When ruling on a motion
to dismiss under Rule 12(b)(6), the court need not accept as
true legal conclusions disguised as factual allegations.
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Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009).
Under Twombly
and Iqbal, Plaintiff’s Complaint must provide “more than labels
and conclusions.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007) (citation omitted).
Indeed, “a formulaic
recitation of the elements of a cause of action will not do.”
Id.
In short, after reading the Complaint many times, and
broadly construing the Complaint in Plaintiff’s favor, the Court
is left with a very minimal, threadbare factual assertion
against Defendants that cannot survive a Rule 12(b)(6) motion.
To summarize Plaintiff’s factual allegations, in May of 2010,
after working for Defendants for less than eight months,
Plaintiff requested an accommodation in the form of a modified
work schedule, assumedly because she was now pregnant.
Defendants were not pleased with Plaintiff’s request.
As a
result, Powell “began harassing and discriminating against
Plaintiff,” and eventually, Plaintiff was terminated less than
one month later in June of 2010.
The remainder of Plaintiff’s
Complaint regarding claims brought under federal law contains
broad, sweeping, legal conclusions without any factual
specificity or support.
For instance, under Count One, entitled
Sex Discrimination Harassment and Hostile Work Environment,
Plaintiff alleges:
37.
By
the
above
acts,
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Defendants
have
violated Title VII and State of Virginia
Human Rights Act by discriminating against
Plaintiff as well as harassing her because
of her sex in the terms, conditions and
privileges of her employment.
38. Indeed, during the course of Plaintiff’s
employment with Defendants, the Defendants,
by and through its agents and employees,
discriminated against the Plaintiff in the
terms,
conditions,
and
privileges
of
employment in various ways, in substantial
part because of her sex, in violation of
Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et. seq. and State of
Virginia Human Rights [A]ct and Laws.
39.
The
above-described
unwelcome
sex
discrimination
created
an
intimidating,
oppressive,
hostile
and
offensive
work
environment
which
interfered
with
Plaintiff’s emotional and physical wellbeing.
(Compl. at 5-6 (emphasis added).)
Similar conclusory language
is used throughout Counts One through Seven (and really, the
remainder of the Complaint in total).
(See Compl. ¶¶ 51-89.)
In short, while lengthy, Plaintiff’s Complaint requires the
Court to speculate as to exactly what her allegations are, and
whether those allegations, if true, entitle her to relief.
See
Twombly, 550 U.S. at 555 (“Factual allegations must be enough to
raise a right to relief above the speculative level.”).
The
Court is not required speculate, nor is it required to accept
these broad conclusions, which are merely “naked assertion[s]”
devoid of “further factual enhancement.”
678; Twombly, 550 U.S. at 557.
Iqbal, 556 U.S. at
Stated differently, the Court is
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left to wonder about the “various ways” in which Defendants
discriminated against Plaintiff.
Rule 12(b)(6) guards against
this type of pleading.
Even though Plaintiff is now represented by counsel,
the Court has liberally construed Plaintiff’s Complaint as if
she were proceeding pro se.
The Court understands its duty to
liberally construe pro se complaints to allow the development of
a potentially meritorious case.
See, e.g., Cruz v. Beto, 405
U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972).
This
duty, however, is not without limitation, and does not require
the Court to “ignore a clear failure in the pleadings to allege
facts [that] set forth a Federal claim,” nor does it require the
Court speculate as to what claims Plaintiff is attempting to
plead.
Glover-Parker v. Orangeburg Consol. Sch. Dist., No.
5:05-1207-JFA-BM, 2007 WL 1704903, at *6 (D.S.C. June 12, 2007)
(citing Weller v. Dep’t of Soc. Serv., 901 F.2d 387 (4th Cir.
1990).
Accordingly, the Court will also dismiss Counts One
through Seven for failure to state a claim upon which relief can
be granted pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
IV. Conclusion
For the foregoing reasons, the Court will grant
Defendants’ Motion to Dismiss.
Counts Eight, Nine, Eleven,
Thirteen, Fourteen, and Fifteen are dismissed as time-barred.
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Counts One through Seven, Ten, and Twelve are dismissed for
failure to state a claim upon which relief can be granted.
An appropriate Order shall issue.
March 4, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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