Wright v. Hilldrup Moving & Storage
MEMORANDUM OPINION AND ORDER- it is hereby ORDERED that and Defendant's Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon Which Relief Can Be Granted [Doc. No. 9] be, and the same hereby is, GR ANTED in part and DENIED in part; ORDERED that Plaintiff's Motion for Summary Judgement and Rebuttal of Defendant's Memorandum in Support of Motion for Summary Judgment [Doc. No. 32] be, and the same hereby is, DENIED; and it is further ORD ERED that Defendant's Motion for Summary Judgment [Doc. No. 21] be, and the same hereby is, GRANTED as to Plaintiff's ADEA claims for discrimination, retaliation, and hostile work environment, and Virginia state law claim for wrongful termination; and this case is DISMISSED. Signed by District Judge Anthony J Trenga on 5/23/2017. (see Order for further details)(dest, ) (copy mailed to pro se)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
JEAN M. WRIGHT,
HILLDRUP MOVING & STORAGE,
Civil Action No. 1:16-cv-1349 (AJT/JFA)
MEMORANDUM OPINION AND ORDER
Prose Plaintiff Jean Wright ("Plaintiff'' or "Ms. Wright") filed this action on October 27,
2016, asserting claims against her former employer, Defendant Hilldrup Moving and Storage
("Defendant" or "Hilldrup") for discrimination and hostile work environment on the basis of her
race and gender in violation in Title VII, retaliation in violation of Title VII, and wrongful
discharge in violation of Virginia state law. Construing her complaint liberally given her prose
status, Plaintiff also asserts claims for discrimination and hostile work environment on the basis
of her age, as well as retaliation, in violation of the Age Discrimination in Employment Act
Pending before the Court are (1) Cross Motions for Summary Judgment by Defendant
[Doc. No. 21] ("Defendant's Motion for Summary Judgment") and Plaintiff [Doc. No. 32]
("Plaintiff's Motion for Summary Judgment"), and (2) Defendant's Motion to Dismiss
Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon Which
Relief Can Be Granted [Doc. No. 9] (the "Motion to Dismiss") (collectively, the "Motions"). On
Friday, May 19, 2016, the Court held a hearing on the Cross Motions for Summary Judgment,
following which the Court took the Motions under advisement.
Upon considerations of the Motions, the filings of the parties in support thereof and in
opposition thereto, the arguments of counsel and Ms. Wright at the May 19, 2017 hearing, and
for the following reasons, Plaintiffs Motion for Summary Judgment is DENIED and
Defendant's Motions are GRANTED in part and DENIED in part. The Motion to Dismiss is
GRANTED on the grounds that the Court does not have subject matter jurisdiction over any of
Plaintiffs Title VII claims and is otherwise DENIED as moot; Defendant's Motion for Summary
Judgment is GRANTED as to those remaining ADEA and Virginia law claims over which the
Court has subject matter jurisdiction; and this case is DISMISSED.
The following facts are undisputed or, when disputed, taken in the light most favorable to
Hilldrup hired Ms. Wright as an administrative assistant in its Information Services
Department in July 2015. She was an at-will employee. In December 2015, Ms. Wright raised
an issue with her direct supervisor, Scott Fitzgerald, regarding certain flex time. On April 14,
2016, Mr. Fitzgerald and Roger Carroll, Senior Vice President of Information Services and Chief
Information Officer, to whom all of the Information Service Department reported, conducted a
six-month performance review with her. The review identified shortcomings in Plaintiffs
performance (she was given a rating of 1.25 out of 4), to which Ms. Wright took exception.
In early June 2016, Ms. Wright approached Beth Williams, Vice President of Human
Resources, to discuss filing a complaint against Mr. Carroll for harassment. Ms. Williams told
Ms. Wright that she would need to file a formal complaint and that she would provide Ms.
Wright with the form to do so. On Tuesday, June 7, 2016, Ms. Williams emailed Ms. Wright the
form, apologizing for the delay in providing it to her and explaining that she had a family
emergency the prior week. Ms. Williams received no response to this email. She followed up on
Monday, June 13, 2016. On June 14, 2016, Ms. Wright responded, telling Ms. Williams that she
decided not to file a formal complaint with Hilldrup "due to the lack of concern and seriousness
displayed from all parties involved here at Hilldrup." She informed Ms. Williams that she had
"been advised to seek counseling elsewhere." On June 21, 2016, Ms. Williams notified Ms.
Wright that she was still available to meet and discuss her concerns further, if Ms. Wright would
like, and that she would move forward to investigate the complaint in any event. On Tuesday,
June 28, 2016, Ms. Williams emailed Ms. Wright to tell her that she would like to meet with her
to discuss the results of her investigation. Ms. Wright responded that she did not have any time
that afternoon, and that she was unable to meet the following morning because she was going on
vacation on Friday and would be busy until then. In the same email, Ms. Wright informed Ms.
Williams that she had filed a complaint with the U.S. Equal Employment Opportunity
Commission (the "EEOC'') instead of filing the complaint with Hilldrup's Human Resources.
Also on June 28, 2016, Ms. Wright emailed Mr. Carroll, informing him that the matter was under
investigation by the EEOC and that he should only communicate with her through email. 1
1 From the exhibits Ms. Wright submitted to the Court, it appears that she first called the EEOC on June I, 2016 to
discuss her situation at Hilldrup. The EEOC responded in a letter dated June 3, 2016, attaching an intake
questionnaire for her to fill out, which she did on June 8, 2016. On June 17, 2016, the EEOC sent Hilldrup notice of
Ms. Wright's charge, which explained that it was investigating alleged discrimination against Ms. Wright based on
age and retaliation. In connection with this litigation, Defendant obtained a copy of the Charge from the EEOC
through a Freedom oflnformation Act request. The official Charge was dated July 1, 2016 and stamped received by
the EEOC on July 22, 2016. In it, Ms. Wright asserted discrimination based on ''retaliation," "age," and "other
(bullying/harassment)" and gave the following details:
I have been employed by the above Respondent from 7/20/2015 and am still employed. My job
classification is Administrative Assistant.
The next morning, June 29, 2016, Ms. Williams responded to Ms. Wright, telling her that
Hilldrup was aware of the EEOC Complaint and asking her to meet with her, which Ms. Wright
did. In that email, Ms. Williams advised Ms. Wright that she could not prohibit her boss, Mr.
Carroll, from speaking with her.
On August 3, 2016, Mr. Fitzgerald and Ms. Williams conducted a 12-month performance
review with Ms. Wright, which again discussed Hilldrup's concerns with Ms. Wright's
interpersonal issues. Mr. Fitzgerald also drafted a perfonnance improvement plan, which
included weekly meetings between Ms. Wright, Mr. Carroll, and Mr. Fitzgerald between August
12, 2016 and October 7, 2016 to provide Ms. Wright with feedback. Ms. Wright again took
exception to her review and drafted a rebuttal to the criticisms. Mr. Carroll then drafted an
addendum to her perfonnance review further detailing her performance issues.
On August 5, 2016, Ms. Wright sent Ms. Williams an email asserting that she had been
subject to a hostile workplace environment. On August 15, 2016, Ms. Wright and Ms. Williams
met to discuss Ms. Wright's concerns and her request to be transferred to another department at
Hilldrup. In a follow-up email, Ms. Williams, noting that Hilldrup had found no evidence of
wrongdoing, informed Ms. Wright that Hilldrup was nonetheless instituting provisions to keep
verbal communications between Ms. Wright and Mr. Carroll to a minimum and to have a thirdI have been subject to disparate treatment and adverse employment terms and conditions by my Supervisor
Scott Fitzgerald (30's} and VP Roger Carroll (56). From December 2015 to May 2016, on several
occasions, I was subject to intimidation, disrespect and negative performance review by the above
management team. On or about 5/26/216, I spoke with Human Resources Director Beth Williams (40's}
about the mistreatment I received and inquired about possible grievance filling. I believe that the disparate
treatment and negative review was the result of discrimination against me due to my age (56).
I believe that I have been discriminated and retaliated against, due to my age (56), in violation of the Age
Discrimination in Employment Act of 1967.
[Doc. No. 10-1.] On July 28, 2016, the EEOC sent Ms. Wright the Dismissal and Notice of Rights in response to
party present whenever interaction between Ms. Wright and Mr. Carroll was required. On
September 6, 2016, Ms. Wright sent Mr. Carroll an email informing him that he violated this
policy when he spoke with her without anyone else present in her section of the office. By this
time, Ms. Wright was openly recording her interactions and meetings with certain Hilldrup
employees, including her weekly meetings with Mr. Carroll and Mr. Fitzgerald.2
In September 2016, Ms. Wright interviewed with Thomas Hinkley, Hilldrup's Senior
Vice President of Commercial Sales, for another position in Hilldrup but was not selected.
According to Mr. Hinkley, he did not select Ms. Wright because he selected a more qualified
candidate. On October 6, 2016, Hilldrup terminated Ms. Wright. Hilldrup hired Steven Curtis to
replace Ms. Wright. Mr. Curtis had retired from Hilldrup in November 2015 and is 65 years old.
STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(l)
Hilldrup contends that the Court is without subject matter jurisdiction with respect to
Plaintiff's sex and race discrimination and hostile work environment claims and all retaliation
claims based on her filing of the EEOC Charge. A Rule 12(b)(l ) motion is the appropriate
vehicle to contest subject matter jurisdiction. The plaintiff bears the burden of establishing the
court's subject matter jurisdiction when contested under Rule 12(b)(l ). Trinity Outdoor, L.L.C.
v. City ofRockville, 123 F. App'x 101, 105 (4th Cir. 2005) (per curiam). In analyzing motions to
dismiss for lack of subject matter jurisdiction, the court is entitled to review materials outside the
pleadings without converting the proceedings to one for summary judgment. See White Tail
Plaintiff submitted to the Court as exhibits audio recordings of certain of her conversations with Ms. Williams, Mr.
Carroll, and Mr. Fitzgerald, including her annual review with Ms. Williams and Mr. Fitzgerald, an August 2016
meeting with Ms. Williams, and her weekly meetings with Mr. Carroll and Mr. Fitzgerald. The Court has also
reviewed these recordings in its consideration of the Cross Motions for Summary Judgment.
Park, Inc. v. Stroube, 413 F.3d 451,459 (4th Cir. 2005); Velasco v. Government ofIndonesia,
370 F.3d 392,398 (4th Cir. 2004). Additionally,the district court analyzing the motions "should
apply the standard applicable to a motion for summary judgment,under which the nonmoving
party must set forth specific facts beyond the pleadings to show that a genuine issue of material
fact exists." Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765,768 (4th Cir.
1991) (citations omitted). If a district court lacks subject matter jurisdiction over an action,the
action must be dismissed. U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337,347 (4th Cir. 2009).
Fed. R. Civ. P. 56
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if the
record shows that "there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242,247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954,958-
59 (4th Cir. 1996). The party seeking summary judgment has the initial burden to show the
absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317,325 (1986). A genuine issue
of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248. Once a motion for summary judgment is
properly made and supported,the opposing party has the burden of showing that a genuine
dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586-87 (1986).
To defeat a properly supported motion for summary judgment, the non-moving party "must set
forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 247-48
("[T]he mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact."). Whether a fact is considered "material" is determined by the
substantive law,and "[o]nly disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment." Id. at 248. The facts
shall be viewed,and all reasonable inferences drawn, in the light most favorable to the non
moving party. Id at 255; see also Lettieri v. Equant Inc., 478 F.3d 640,642 (4th Cir. 2007).
Subject Matter Jurisdiction
As an initial matter,the Court only has subject matter jurisdiction over federal ..claims
that were administratively exhausted before the EEOC." Wright v. Williamsburg Area Med
Assistance Corp., No. 4:12-cv-152, 2014 WL 1056719, at *1 (E.D. Va. Mar. 18,2014), aff'd,
585 F. App'x 143 (4th Cir. 2014) (citing Jones v. Calvert Group, Ltd., 551 F.3d 297,300 (4th
Cir. 2009)). "'Only those discrimination claims stated in the initial charge,those reasonably
related to the original complaint, and those developed by reasonable investigation of the original
complaint may be maintained in a subsequent Title VII lawsuit."' Jones, 551 F.3d at 300
(quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996)). "Thus,a
claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on
one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis,
such as sex." Id. Here, the Court does not have jurisdiction over Plaintiffs Title VII sex and
race based discrimination,retaliation, and hostile work environment claims.3 Ms. Wright's
EEOC Charge was limited to complaints about age-based discrimination,retaliation,and
harassment. See [Doc. No. 10-1]. Therefore, the Court will grant Defendant's Motion to
Defendant also contends that the Court lacks subject matter jurisdiction over any of Plaintiff's claims asserting
retaliation based on her EEOC charge because Plaintiff did not file a subsequent charge with the EEOC alleging
retaliation on this basis. The Fourth Circuit has explained, however, that "a claim of retaliation for the filing of an
EEOC charge as discrimination is indeed like or reasonably related to and growing out of such allegations." Jones,
551 F.3d at 302 (internal quotation marks omitted). Thus, the Court has subject matter jurisdiction over her ADEA
retaliation claim, as her EEOC charge alleged discrimination, retaliation, and harassment in violation of the ADEA.
Dismiss on the grounds that it does not have subject matter jurisdiction over any of Plaintiffs
Title VII claims.
Motions for Summary Judgment
The Court addresses Plaintiff's remaining claims for discrimination, retaliation, and
hostile work environment in violation of the ADEA, and for wrongful termination under Virginia
law, in the context of the parties' cross motions for summary judgment.
"Generally speaking, to establish a prima facie case of unlawful age discrimination," the
plaintiff"must show that (1) [s]he is a member of the protected class; (2) [s}he was qualified for
the job and met [the employer's] legitimate expectations; (3) [s}he was discharged despite h[er]
qualifications and performance; and (4) following h[er] discharge, [s}he was replaced by a
substantially younger individual with comparable qualifications." Warch v. Ohio Cas. Ins. Co.,
435 F.3d 510, 513 (4th Cir. 2006). "A plaintiffsuing under the ADEA must show that 'but for'
age discrimination, the adverse employment action would not have occurred." Kirkland v.
Mabus, 206 F. Supp. 3d 1073, 1082 (E.D. Va. 2016) (citing Gross v. FBL Fin. Servs. Inc., 557
U.S. 167, 176 (2009)).
Here, Plaintiff has failed to establish a prima facie case of discrimination. First, she has
presented no evidence that would allow a reasonable fact finder to conclude that her performance
met Hilldrup's legitimate expectations. All of the evidence in the record pertaining to her
performance indicates that she failed to meet performance expectation from the start of her job.
See [Doc. No. 22-2, 22-3, 22-5]; see also Evans, 80 F.3d at 960-61 ("It is the perception of the
decision maker which is relevant, not the self-assessment of the plaintiff.") (internal quotation
marks omitted). It is also undisputed that Ms. Wright was replaced by an individual who is older
than she is. See Curtis Deel. [Doc. No. 22-5). For these reasons,even viewing the evidence and
all reasonable inference in the light most favorable to Ms. Wright,she has not made out a prima
facie case of discrimination on the basis of her age in violation of the ADEA.
"An employer violates the ADEA by retaliating against an employee for engaging in a
protected activity." Johnson v. Mechanics & Farmers Bank, 309 F. App'x 675,684 (4th Cir.
2009). "The elements of a prima facie case of retaliation are (1) the plaintiff engaged in a
protected activity,(2) the employer took an adverse employment action against the plaintiff,and
(3) a causal connection existed between the protected activity and the adverse employment
action." Id "If the employee establishes a prima facie case,the employer may rebut it by
presenting evidence of a legitimate,non-retaliatory reason for the adverse action." Id "After the
employer presents evidence of its legitimate,non-retaliatory reason, the burden shifts back to the
employee to show that the employer's proffered reason is pretextual." Id. Here,Plaintiff also
fails to make out a prima facie case of retaliation because there is insufficient evidence for a
reasonable fact fmder to find a causal connection between her complaint to the EEOC and her
termination on October 6,2016. Hilldrup learned about Ms. Wright's EEOC complaint no later
than June 29,2016. This temporal proximity of more than three months is too long to establish a
causal connection in itself,as "[e]ven a mere ten-week separation between the protected activity
and termination 'is sufficiently long so as to weaken significantly the inference of causation
between the two events."' Perry v. Kappos, 489 F. App'x 637,643 (4th Cir. 2012) (quoting
King v. Rumsfeld, 328 F.3d 145,151 n.5 (4th Cir. 2003); see Pascual v. Lowe's Home Centers,
Inc., 193 F. App'x 229,233 (4th Cir. 2006) ("In this case,at least three to four months separated
the termination of Pascual's employment and the claimed protected activities. We find that this
time period is too long to establish a causal connection by temporal proximity alone.").
Hilldrup's actions surrounding Ms.Wright's one-year performance review in August 2016 also
do not evidence "continuing retaliatory conduct and animus" in the period between her
complaint and termination, as the issues Hilldrup raised are the same as those identified in her
six-month review in April 2016,
before her complaints to Hilldrup's Human Resources
Department and the EEOC. See Francis v. Booz, Allen & Hamilton, Inc., 45 2 F.3d 299,309 (4th
Cir. 2006) ("The actions that led to Francis' probation and termination began before her
protected activity, belying the conclusion that a reasonable factfinder might find that BAH's
activity was motivated by Francis' USERRA complaints."). For the same reason, Wright
has not presented any evidence sufficient to raise an inference that the legitimate,
justification for her termination that Hilldrup has presented,
inadequate job performance, a
pretext for retaliation to her EEOC complaint. For these reasons,
even viewing the evidence and
all reasonable inference in the light most favorable to Ms.Wright, has not made out a pruna
facie case of retaliation under the ADEA.
Hostile Work Environment
The elements of a prima facie case of hostile work environment are: ··o) the harassment
was unwelcome; (2) the harassment was based on [plaintiff's] ...age; (3) the harassment was
sufficiently severe or pervasive to alter the conditions of employment and create an abusive
atmosphere; and (4) there is some basis for imposing liability on the employer.',4 Causey v.
Balog, 16 2 F.3d 795, (4th Cir.1998). '·A hostile environment exists '[w]hen the workplace
is permeated with discriminatory intimidation, ridicule, insult that is sufficiently severe or
The Fourth Circuit has assumed without deciding that a hostile work environment claim is available under the
ADEA. See Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006) (citing Burns v. AAF-McQuay, Inc., 166 F.3d
292, 294 (4th Cir. 1999), and Causey, 162 F.3d at 801 n. 2).
pervasive to alter the conditions of the victim's employment and create an abusive working
environment."' Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (alternation in original).
While Ms. Wright's complaint asserts allegations of harassment, she has offered no
evidence sufficient for a reasonable fact finder to conclude that harassment did in fact occur.
Even assuming she was harassed, there is no evidentiary basis from which to infer that she was
harassed based on her age. The record is also insufficient to establish that any harassment was
sufficiently severe or pervasive. At most Ms. Wright identifies a few isolated incidents over a
10-month period; and the Supreme Court "has stressed that 'simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment."' Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,
298-99 (4th Cir. 2015) (quoting Faragher v. City ofBoca Raton, 524 U.S. 775, 788 (1998)). For
these reasons, even viewing the evidence and all reasonable inference in the light most favorable
to Ms. Wright, she has not made out a prima facie case of hostile work environment under the
Wrongful Termination under Virginia Law
Finally, Ms. Wright has no claim for wrongful termination under Virginia law. As an at
will employee, there is nothing in her contract that prohibited Hilldrup from terminating her.
There is also no recognized Virginia common law claim for wrongful termination on the basis of
age, race, sex or other protected categories covered by the Virginia Human Rights Act. See
Conner v. Nat'l Pest Control Ass 'n, Inc., 513 S.E.2d 398, 399-400 (Va. 1999); Va. Code Ann. §
2.2-3903(B).5 For these reasons, Ms. Wright's Virginia state law claim for wrongful termination
fails as a matter of law.
For the above reasons, it is hereby
ORDERED that and Defendant's Motion to Dismiss Complaint for Lack of Subject
Matter Jurisdiction and Failure to State a Claim upon Which Relief Can Be Granted [Doc. No. 9]
be, and the same hereby is, GRANTED in part and DENIED in part. It is granted on the grounds
that the Court does not have subject matter jurisdiction over any Title VII claims by Plaintiff and
is otherwise denied as moot; and it is further
ORDERED that Plaintiff's Motion for Summary Judgement and Rebuttal of Defendant's
Memorandum in Support of Motion for Summary Judgment [Doc. No. 32] be, and the same
hereby is, DENIED; and it is further
ORDERED that Defendant's Motion for Summary Judgment [Doc. No. 21] be, and the
same hereby is, GRANTED as to Plaintiff's ADEA claims for discrimination, retaliation, and
hostile work environment, and Virginia state law claim for wrongful termination; and this case is
The Virginia Human Rights Act provides for protections against discrimination committed by employers not
covered by the federal discrimination laws, i.e., employers with less than 15 employees for race and sex
discrimination claims and less than 20 for age discrimination claims. See Va Code Ann. § 2.2-3903(8), (D); see
also Jones v. Kroger Ltd P 'ship I, 80 F. Supp. 3d 709, 716 (W.D. Va. 2015); Walton v. Sch. Bd ofGloucester Cty.,
4:06-cv-75, 2006 WL 3838235, at *5 (E.D. Va. Dec. 4, 2006) ("In this case, Walton cannot maintain her VHRA
claim against the School Board because it is clear that the School Board has at least fifteen employees."). Ms.
Wright's Charge indicates that Hilldrup employs much more than twenty people.
This is a final order for purposes of appeal. To appeal, Plaintiff must file a written
Notice of Appeal with the Clerk of the Court within thirty (30) days of the date of this Order. A
Notice of Appeal is a short statement stating a desire to appeal an order and identifying the date
of the order Plaintiff wishes to appeal. Failure to file a timely Notice of Appeal waives
Plaintiff's right to appeal this decision.
The Clerk is directed to forward a copy of this Order to all counsel of record and to
May 23, 2017
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