Good v. Fairfax County et al
Filing
26
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 12/19/2014. (rban, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ANN GOOD,
Plaintiff,
v.
FAIRFAX COUNTY, et al.,
Defendants.
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M E M O R A N D U M
1:14cv1350 (JCC/TCB)
O P I N I O N
This employment discrimination action is before the
Court on Defendant Fairfax County’s Motion to Dismiss for
Failure to State a Claim filed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
[Dkt. 13.]
The motion has
been fully briefed and is now before the Court.
I. Background1
Plaintiff Ann Good (“Plaintiff”) was hired by the
Fairfax County Sheriff’s Office (“the Sheriff’s Office”) as a
Deputy Sheriff in 1993.
(Compl. [Dkt. 1] ¶ 8.)
In 2008,
Plaintiff began working as a Basic Instructor at the Fairfax
County Criminal Justice Academy (“the CJA”), which trains new
1
In considering a motion to dismiss for failure to state a claim, as is the
case here, “a court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff[.]” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations
omitted). Accordingly, the following facts, taken from Plaintiff’s
Complaint, are accepted as true for purposes of this motion. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
1
police recruits for, inter alia, the Fairfax County Police
Department (“FCPD”) and the Sheriff’s Office.2
(Id. at ¶ 9.)
The CJA trains new recruits to obtain their Law Enforcement
Certification, and applicable to Sherriff’s Office recruits,
their Civil Enforcement Certification and Court Security and
Jailer Certifications.
(Id. at ¶ 12.)
The CJA Basic Recruit School is under the joint
command of FCPD, the Sheriff’s Office, and the towns of Vienna
and Herndon.
(Compl. ¶ 10.)
As a Basic Instructor, Plaintiff
was under the Command of both FCPD and the Sheriff’s Office, but
reported to the FCPD on a daily basis.
(Id. at ¶¶ 10, 13.)
The
FCPD Command authorized Plaintiff’s leave and overtime, while
the Sheriff’s Office Command supervised Plaintiff’s time and
attendance.
(Id. at ¶ 10.)
The FCPD Command Supervisors
completed Plaintiff’s evaluation, with an addendum added by the
Sheriff’s Office Command Supervisors.
(Id.)
In 2009, FCPD Officer James Summers (“Summers”)
started stalking and harassing Plaintiff.
(Compl. ¶ 15.)
In
April of 2013, a jury convicted Summers of forcibly sodomizing
Plaintiff in the fall of 2009.
(Id.)
Summers was sentenced to
seven years of incarceration with two years suspended.
2
(Id.)
Since the FCPD’s inception in 1940, the Sheriff’s Office has provided three
main areas of service to Fairfax County: managing the County Jail, providing
security in the County Courthouses, and serving civil process, while the FCPD
assumed primary law enforcement responsibilities in the County. See Fairfax
County, Virginia: About the Sheriff’s Office,
http://www.fairfaxcounty.gov/sheriff/aboutus.htm (last visited Dec. 9, 2014).
2
Contemporaneously in 2009, Plaintiff was sexually
harassed at work by her immediate supervisor, FCPD Sergeant Eric
Bridge (“Bridge”), who inappropriately touched Plaintiff and
told her that she “owed him” because of his continued support.
(Compl. ¶¶ 15-17.)
Plaintiff complained about Bridge’s actions
and sought relief from CJA Supervisors in both FCPD and the
Sheriff’s Office.
(Id. at ¶ 18.)
Between 2010 and 2012,
Plaintiff specifically complained to Sheriff’s Office Captain
Ramarr Prudhum, who ignored Plaintiff’s claims and pledged
support for Bridge.
(Id.)
After filing a complaint with the Sheriff’s Office
Equal Employment Opportunity/Affirmative Action Officer
Lieutenant Jarmal Perkins, an internal investigation was
initiated and Bridge was eventually reassigned from the CJA.
(Compl. ¶ 19.)
Prior to leaving the CJA, FCPD Sergeant Bridge
publicly addressed colleagues in the conference room, exposing
Plaintiff’s confidential allegations and warning others, “first
she went after Summers, then she went after me, you could be
next.”
(Id. at ¶ 20.)
Because Plaintiff’s complaints were now
public, her colleagues ostracized her, refused to speak to her,
and excluded her from work activities.
(Id. at ¶ 21.)
Even
though FCPD and Sheriff’s Office Supervisors observed this
behavior, nothing was done to stop it.
3
(Id. at ¶ 22.)
In early 2013, FCPD and Sheriff’s Office Supervisors
even perpetuated Plaintiff’s shaming within the CJA.
23-24.)
(Compl. ¶¶
Specifically, FCPD Lieutenant Mike Shamblin told
Plaintiff she “was like a person on [the television show]
Survivor who had no allies,” and Sheriff’s Office Captain Ramarr
Prudham told Plaintiff’s colleague Sheriff’s Office Sergeant Amy
Gaisor to not speak to Plaintiff because “she would only get her
in trouble.”
(Id.)
Similar threats and intimidation continued
throughout 2013, which eventually culminated in the reassignment
of Plaintiff’s work duties.
(Id. at ¶ 25.)
First, in June of 2013, FCPD Sergeant Pete Massaro
(“Massaro”) removed Plaintiff as Lead Physical Trainer in
retaliation for her sexual harassment complaint against FCPD
Sergeant Bridge.
(Compl. ¶ 26.)
One month later, in July of
2013, FCPD Sergeant Massaro told Plaintiff that everyone in FCPD
knew about her complaint against Bridge because FCPD Captain
David Smith made her Internal Affairs’ file available for
viewing.
(Id. at ¶ 27.)
Second, in August of 2013, FCPD and
Sheriff’s Office Supervisors wanted to remove Plaintiff from the
CJA’s Basic Staff and to justify such a removal, Sheriff’s
Office Captain Ramarr Prudham ordered FCPD Sergeant Pete Massaro
to lower Plaintiff’s performance evaluation “in the area of
working cooperatively with others.”
(Id. at ¶¶ 28-29.)
Around
this time, during Plaintiff’s participation in an excessive
4
force training exercise, Supervisors allowed trainees to
brutalize Plaintiff beyond the point of excessive force.
at ¶ 31.)
(Id.
Third, on September 27, 2013, Plaintiff was removed
from her Basic Instructor position at the CJA, where she had
supervisory responsibilities over training recruits, and was
involuntarily reassigned first to the Law Enforcement Training
Unit, where she had no duties, and ultimately to the Civil
Enforcement Unit, where she had some work duties, but no
supervisory authority.
(Id. at ¶ 32.)
Plaintiff filed charges of sex-based discrimination
and retaliation with the U.S. Equal Employment Opportunity
Commission against Fairfax County on January 24, 2014, and
against the Sheriff’s Office on February 5, 2014.
(Compl. ¶ 3.)
Separate right-to-sue notices were issued on August 26, 2014,
which was 90 days before the filing of this Complaint on October
15, 2014.
(Id.)
Plaintiff originally brought four counts in
the Complaint: Count One, Sex-Based Discrimination against the
Sheriff’s Office; Count Two, Retaliation against the Sheriff’s
Office; Count Three, Sex-Based Discrimination against FCPD; and
Count Four, Retaliation against FCPD.
(Id. at 10-11.)
However,
on Plaintiff’s Motion, the Court voluntarily dismissed Counts
One and Three, leaving only claims of retaliation against the
5
Sheriff’s Office and FCPD.3
(See Joint Mot. to Voluntarily
Dismiss Counts I and III [Dkt. 22]; see also Order [Dkt. 24].)
Defendant Fairfax County (“Fairfax County”) now moves
to dismiss Count Four, the retaliation claim.
[Dkt. 13.]
The
motion is fully briefed and the Court heard argument of counsel
on December 18, 2014.
Thus, the motion is ripe for disposition.
II. Standard of Review
“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
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.
Ashcroft v. Iqbal, 556 U.S. 662, 679-81
(2009).
The plaintiff’s facts must “be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. 544, 555 (2007).
3
Bell Atl. Corp. v.
Extrinsic evidence is not
In its motion to dismiss, filed before this voluntary dismissal, Fairfax
County also argued that Count Three should be dismissed. (Def.’s Mem. at 45.) This argument is moot and the Court need not address it.
6
typically considered when determining the sufficiency of a
complaint, although the court “may properly take judicial notice
of matters of public record . . . [and] may also consider
documents attached to the complaint . . . as well as those
attached to the motion to dismiss, so long as they are integral
to the complaint and authentic.”
Philips v. Pitt Cnty. Mem’l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citations omitted).
III. Analysis
Title VII of the Civil Rights Act of 1964 prohibits an
employer from retaliating against an employee because the
employee “opposed any practice made an unlawful practice by the
[title], or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing under this [title].”
42 U.S.C. § 2000e-3(a).
To
state a claim for retaliation, Plaintiff must sufficiently plead
facts to support the following three elements: (1) Plaintiff
engaged in a protected activity; (2) Plaintiff suffered an
adverse employment action; and (3) a causal link between the
protected activity and the employment action.
Coleman v.
Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)
(citing Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004)).
Fairfax County does not necessarily contest the sufficiency of
these three elements, but instead argues the Complaint should be
dismissed because Plaintiff has failed to plead facts that
7
sufficiently allege Fairfax County can be held liable as an
employer for purposes of Title VII, a threshold determination.
(Def.’s Mem. in Supp. [Dkt. 15] at 5-9; see also Magnuson v.
Peak Technical Servs., Inc., 808 F. Supp. 500, 507 (E.D. Va.
1992).)
Fairfax County contends Plaintiff is solely employed
by the Sheriff’s Office, an entity separate and distinct from
Fairfax County.
(Id. at 5-6.)
Sheriffs in Virginia are
constitutional officers who serve independently of local
governments, and thus, courts have consistently held that a
local government in Virginia, like Fairfax County, cannot be
held liable for the actions of the Sheriff’s Office.
See, e.g.,
Strickler v. Waters, 989 F.2d 1375, 1390 (4th Cir. 1993) (citing
Sherman v. City of Richmond, 543 F. Supp. 447, 449 (E.D. Va.
1982) (“Neither the City of Richmond nor the Commonwealth of
Virginia is responsible for the actions of the Sheriff of the
City of Richmond . . . . As a [state] constitutional officer,
the Sheriff services independent of the municipal or county
government and independent of the State government.”)).
Accordingly, Fairfax County concludes that because it cannot be
held liable for the actions of the Sheriff’s Office, Count Four
must be dismissed because Plaintiff has not adequately pled the
threshold showing of an employment relationship with Fairfax
County.
(Id. at 6.)
8
Plaintiff opposes Fairfax County’s motion and argues
that she did state sufficient facts to sustain a claim against
Fairfax County and hold it liable for the retaliatory actions
taken by employees in its Police Department.
23] at 1-9.)
(Pl.’s Opp’n [Dkt.
Plaintiff concedes that Fairfax County cannot be
held liable for actions of the Sheriff’s Office, but instead
argues that Fairfax County is separately liable as Plaintiff’s
co-employer.
(Id. at 5-6 (“She does seek to hold Fairfax County
responsible for the Title VII violations of its Police
Department employees who had the authority to, and did, exercise
control over her duties and working conditions.”).)
Thus, the sole issue before the Court is whether
Plaintiff pled sufficient facts to sustain a claim for
retaliation against Fairfax County for the actions of its Police
Department employees.
The Court answers this question
affirmatively and will deny the motion to dismiss.
A. “Employer” under Title VII
In order to assert a plausible claim for relief under
Title VII against Fairfax County, Plaintiff must establish that
it is her “employer” within the meaning of the statute.
Lissau
v. Southern Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998)
(“Congress only intended employers to be liable for Title VII
violations.”).
Fairfax County is an “employer” if it (1) falls
within the statutory definition of “employer,” and (2)
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“exercised substantial control over significant aspects of the
compensation, terms, conditions, or privileges of plaintiff’s
employment.
Magnuson v. Peak Technical Servs., Inc., 808 F.
Supp. 500, 507 (E.D. Va. 1992) (citing Amarnare v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 611 F. Supp. 344, 349
(S.D.N.Y. 1984) (holding that the most important factor in
determining “employer” status under Title VII is the extent of
the employer’s right to control means and manner of worker’s
performance)).
Title VII defines an employer as “[a] person4 engaged
in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year[.]”
U.S.C. § 2000e(b).
42
Plaintiff alleges that Fairfax County has
employed more than 500 persons in each of that last twenty
months (Compl. ¶ 6), thereby satisfying the statutory
definition.
But the inquiry does not end there; Plaintiff must
still allege facts that show Fairfax County exercised the
requisite control over significant aspects of Plaintiff’s
employment.
Magnuson, 800 F. Supp. at 507.
Notably, “[a]n individual may be the employee of more
4
“Person” is defined as including “one or more individuals, governments,
governmental agencies, political subdivisions, labor unions, partnerships,
associations, corporations, legal representatives, mutual companies, jointstock companies, trusts, unincorporated organizations, trustees, trustees in
cases under Title 11, or receivers.” 42 U.S.C. § 2000e(a).
10
than one ‘employer’ for purposes of Title VII.”
Id. at 507-508
(recognizing the statutory language suggests that Congress
intended Title VII to “apply beyond the conventional single
employer situation.”) (citations omitted).
In determining
whether Fairfax County is Plaintiff’s employer, the Court is
mindful of Congress’s broad intent for Title VII, “which
militates against the adoption of a rigid rule strictly limiting
‘employer’ status under Title VII to an individual’s direct or
single employer.”
Id., 800 F. Supp. at 508 (citation omitted).
Fairfax County cites an Eleventh Circuit case for the
proposition that the County lacks legal authority to intervene
on behalf of the Sheriff’s Office because the FCPD and the
Sheriff’s Office are separate government entities with
independent operations.
(Def.’s Mem. at 6-7 (citing Lyes v.
City of Riviera Beach, 166 F.3d 1332, 1344-45 (11th Cir. 1999)
(en banc) (discussing the “single employer” test for deciding
whether two governmental entities should be treated as one
entity for Title VII purposes)).)
before the Court.
But this misstates the issue
Plaintiff does not seek to hold Fairfax
County liable for the conduct of Sheriff’s Office employees.
She has sued the Fairfax County Sheriff in her official capacity
for the actions of various Sheriff’s Deputies.
7, 37-38.)
(See Compl. ¶¶
Instead, Plaintiff is also suing Fairfax County for
the alleged Title VII violations of its Police Department
11
employees who, in addition to the Sheriff’s Office, exercised
control over Plaintiff’s work environment.
(Pl.’s Opp’n at 6.)
This Court has repeatedly recognized that an
employer’s right to control the Plaintiff’s work, or means and
manner of Plaintiff’s work performance, as the most important
factor when determining whether a named defendant is an
“employer” under Title VII.
See, e.g., Magnuson, 808 F. Supp.
at 507; King v. Dalton, 895 F. Supp. 831, 838 (E.D. Va. 1995)
(citing Garrett v. Phillips Mills, Inc., 721 F.2d 979, 982 (4th
Cir. 1983)).
Here, based on this factor alone,5 the Complaint6
sufficiently pleads facts to support a retaliation claim against
Fairfax County as Plaintiff’s employer.
While there is no express allegation in the Complaint
that Plaintiff is employed by Fairfax County, the following
allegations, when taken as true and viewed in a light most
favorable to Plaintiff, are sufficient to state a claim against
Fairfax County.
The CJA, where Plaintiff worked when the sexual
harassment and allegations took place, was jointly operated by
5
This Court has recognized other relevant factors that assist this calculus.
See King, 895 F. Supp. at 838 (listing factors to determine whether plaintiff
was an employee or independent contractor) (citing Mares v. Marsh, 777 F.2d
1066 (5th Cir. 1985) (applying factors to determine whether defendant was
plaintiff’s employer under Title VII) (additional citations omitted)).
However, because it is clear from the Complaint that this most important
factor is satisfied, the others need not be addressed.
6
Plaintiff attached a sworn affidavit to her opposition brief. (Pl.’s Opp’n
Ex. 1 [Dkt. 23-1].) The Court has not considered these additional “sworn
statements” because they are not integral to the Complaint and not proper at
the motion to dismiss stage. Philips v. Pitt Cnty. Memorial Hosp., 572 F.3d
176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526
n.1 (4th Cir. 2006)).
12
the Sheriff’s Office, the Fairfax County Police Department, and
other Fairfax County agencies.
(Compl. ¶ 10.)
Plaintiff also
reported to the Fairfax County Police Department on a daily
basis.
(Id.)
Her leave and overtime were authorized through
the Fairfax County Police Department chain of command.
(Id.)
Plaintiff’s performance evaluation, which assumedly impacted her
work duties, was completed by Fairfax County Police Department
Supervisors.
(Id.)
Plaintiff’s complaints of sexual harassment
that form the basis of her retaliation claim were brought
against Sergeant Bridge of the Fairfax County Police Department.
(Id. at ¶ 16.)
Most notably, Plaintiff’s work duties at the CJA were
altered or reassigned by Fairfax County Police Department
employees.
First, Fairfax County Police Department Sergeant
Massaro removed Plaintiff as Lead Physical Trainer in June of
2013.
(Id. at ¶ 26.)
Second, on Plaintiff’s August 19, 2013
performance evaluation, Fairfax County Police Department
Sergeant Massaro lowered Plaintiff’s rating for working
cooperatively with others, explicitly referencing Plaintiff’s
complaints regarding sexual harassment.
(Id. at ¶ 29.)
Plaintiff was subsequently demoted to positions with either no
work duties or diminished work duties, in a non-supervisory
role.
(Id. at ¶ 32.)
At the very least, these allegations show
Fairfax County, through its Police Department, controlled
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Plaintiff’s work.
Therefore, Plaintiff pled sufficient facts to
sustain a claim of retaliation against Fairfax County as her coemployer, in addition to the Sheriff’s Office.
Magnuson, 808 F.
Supp. at 507-508.
IV. Conclusion
For the foregoing reasons, the Court will deny Fairfax
County’s Motion to Dismiss.
An appropriate Order will issue.
December 19, 2014
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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