Evans v. Larchmont Infant Care Center et al

Filing 30

Opinion and Order The Court GRANTS Larchmont's 23 Motion to Dismiss and ORDERS the following: 1. Plaintiff shall file an Amended Complaint alleging all relevant facts pertaining to her adverse treatment at Larchmont that began on or around Jul y 2009 on or before Friday, March 16, 2012. 2. Plaintiff shall attach, as exhibits to the Amended Complaint, the Charge of Discrimination that she filed with the EEOC and the Notice of Right to Sue that she received from the EEOC. She may also attac h any other documentation that supports her claim, including affidavits and declarations. 3. Larchmont shall respond to Plaintiff's Amended Complaint within the time allotted under Federal Rule of Civil Procedure 15(a)(3). Larchmont may attach supporting documentation, including affidavits and declarations, as exhibits to its responsive pleadings. 4. The Final Pretrial Conference and Jury Trial dates in this matter shall be vacated and rescheduled by the Court at a later date. 5. The Clerk shall promptly mail a copy of this Order to the Plaintiff. Signed by Magistrate Judge F. Bradford Stillman and filed on 2/29/2012. Copies distributed 3/01/12 as directed.(ldab, )

UNITED
FOR

THE

STATES

EASTERN

DISTRICT

DISTRICT

Norfolk
NICOLE

D.

RLE r^

COURT

OF

VIRGI1

FEB 2 9 2012

Division

EVANS,

CLERK, US DISTRICT COURT

Plaintiff,
Case

v.

LARCHMONT

No.:

2:llcv306

BAPTIST

CHURCH

INFANT

CENTER,

INC.,

CARE
et

al.,

Defendants.
OPINION
Before
Care

the

Center,

Evans's

Court

Inc.'s

Defendant

(Larchmont)

Complaint.1

Defendant's

is

motion

ECF No.
is

on

June

9,

2011.

Plaintiff's

Larchmont

1

filed

and

capacities.

a

one-page

Complaint

are

sparse,

September

Carmi

Reed

before

the

Dismiss

on

2012,

why

2006

from

addresses

Larchmont.

reasons

Court,

through

and
19,

sponte,

and

action.

complaint
the

she

as

stated

states

June

against

factual

herein,

as

Larchmont

allegations

that

2010

defendants

Larchmont's

sua

Reed

this

Nicole

she

a

worked

Lead

in
at

Teacher.

Plaintiff's Complaint names Laura Reed

January

Court,

Defendants

prejudice
Order

the

se

Although

("Carmi")

j oined

Motion
23,

pro

3.

Kim

the

Infant

Plaintiff

Dismiss

Church

BACKGROUND

No.

presently
to

For

ECF

from

to

Baptist

GRANTED.

In addition to Larchmont,

("Reed")

Larchmont

Motion

23.

I.

Plaintiff

and ORDER

Carmi

Carmi
2012,

Complaint

their

a

be

On
to

as

pro

is
se

February

show

cause

dismissed

with

Accordingly,
only

which

separate
25).

Plaintiff
not

individual

Dismiss,

filed

should

29.

in

to

(ECF No.

ordered

ECF No.

Plaintiffs

Motion

it

the present
pertains

to

Plaintiff
her

to

filed

alleges

write
a

7,

§

24

the

after

actions

and 29,

about

U.S.

in

as

42 U.S.C.

former

to

amended,

§ 2000e-3,

investigated

her

that

been

had

refused to

her

the

practice made

made

a

same

in an

and

because

found

conduct.

sufficient

against.

U.S.C.

§

See

42

EEOC

charge.

Plaintiff
("ADA"),

the

with

the

42

seeks
U.S.C.

EEOC,

evidence

After

by

individual

this

chapter

assisted,

proceeding,

12203(a).

provision.

in

her

to

Larchmont

EEOC,

the

which

believe

allegedly

agency

issued

2011.3 Plaintiff

"[n]o person shall discriminate against
such

testified,

investigation,

demoted

(collectively "the Acts").2

conciliation with

unlawful

charge,

On

terminated her employment

filed her own charge

2 The ADA provides that:
individual

had

Opportunity

co-worker's

Plaintiff a Notice of Right to Sue on March 18,

any

who

employment.

Larchmont

Disabilities Act

as amended

retaliated
in

co-worker,

asked

and Title VII of the Civil Rights Act of 1964,

claim

engage

employer

Employment

that

the

the Americans with

Plaintiff apparently

she

for

her

terminated

alleges

retaliation

2009,

Equal

Larchmont

related

a

further alleges that Larchmont

under

12203,

June

Plaintiff

for

June 2010

relief

with

2009,

Plaintiff

on

statements

("EEOC")

retaliation

in

false

charge

Commission

August

that

Title

U.S.C.

§

VII

has

or

or

opposed

because

any

such

participated

act

individual

in any manner

or hearing under this chapter."
contains

a

or

substantially

42

similar

2000e-3(a).

3 Plaintiff has not provided the Court with the EEOC Charge that
she

filed against

allegedly
required

to

allegations
right

to

(4th

Cir.

Larchmont

received

from

attach

in

the

relief,

2005),

these

EEOC

see

and,

or

the

in

Notice

documents

charge

Chacko

the

EEOC.

v.

the

of

Right

Although
to

to

that

she

are

not

their

complaints,

the

generally circumscribe
Patuxent

instant
-2-

Inst.,

matter,

Sue

claimants

429

a

claimant's

F.3d

reference

505,

to

509

these

subsequently

lost

wages

filed a

in

the

Larchmont
9,

2011.

to

amount

filed

ECF No.

Dismiss

claim

Dismiss

on

the

a

special

Local

dismissed

for

failed

Title

VII

issue

a

lack of

applies

action.

Cir.

See

2009).

documents

U.S.

A

for

be

granted.

to

memorandum,

failure
ECF

to

Nos.

state
23-24.

requiring

Defendant's

Motion

Because

2012.4

party

oral

deemed submitted
Rule

on August

filed a Motion

and

7,

Civil

no

argument

in

to

has
this

for decision based

7(J).

Plaintiff's

sufficient

to Larchmont.

ex

Larchmont

supporting

Opposition

is

Complaint

and

can

that

facts

grant

2012,

subject matter

ruling binding

constitutional

damages

SUBJECT MATTER JURISDICTION

contends

to plead

for

jurisdiction

circumstances

See

Larchmont

17,

February

II.

has

in

Larchmont's motion

asking

Plaintiff's

Complaint

relief

on

Court

$80,000.00.

January

Motion

("Reply")

papers.

this

subject matter

which

filed

indicated

matter,

On

Plaintiff's

upon

Plaintiff

of

in

an Answer to

8.

asserting lack of
a

complaint

of

rel.

Vuyyuru

plaintiff's

would greatly

over

v.

claim

assist

to demonstrate

in the

authority

should

jurisdiction because

A district

the parties

Complaint

court

Jadhav,

"may

lacks

absence

the

be

the Court's

that

of

555

the ADA or

statutory or

matter

F.3d

337,

dismissed

reading

Plaintiff

the power to

a

subject

be

of

for

of

347

want

the
(4th

of

Plaintiff's

Complaint.

4 Although Plaintiff's Reply was untimely,
its

consideration.

-3-

no party has objected to

subject-matter jurisdiction if

it

.

frivolous.'" Arbauqh v.

.

.

'wholly

546 U.S.

500,

682-683
more

513

(1946)).

employees

weeks
§§

insubstantial

in

the

n.10

(2006)

not

colorable,

(quoting Bell v.

for each working day

Hood,

or preceding

Complaint

number

of

period,

and Larchmont

in

each

of

calendar

individuals

Plaintiff

has

Larchmont

is

lacks

any

made

be

Federal

Larchmont

contends

employed at

no

employed

that

allegations

dismissed

Rule

Plaintiff's

it

has

and

of

for

Civil

failure

Larchmont does

lack

of

never

Procedure

Larchmont

contention.

weeks

have

to

H Corp.,

678,

."

calendar

42

U.S.C.

has

not

allege

submitted

1,
ECF

No.

Carmi

2008,

the

these

Carmi's

in March,

9

attach.

records
count,

law

any

June

for

1.

the

Larchmont

the

no

Because

evidence

argues

number

that this

jurisdiction

9,

of

individuals

provides that
of

all

2009

to

Although

of

"district

civil

pay

her
the

this

roll

Court

Order,

individuals

and one

week

in August

this

records

Answer.

15

-4-

actions

supporting

employed

Id.

that

of subject-matter

evidence

purpose

one week in June,

the

relevant

24.

matter

attached Larchmont's

through

concerning

employed fifteen

not deprive this Court

original

Defendant

January

by

is

12(b)(l).

jurisdiction

shall

considered

.

ECF No.

subject

courts

that

it

327 U.S.

during

Larchmont

Federal

Ex.,

.

provided

jurisdiction over her claim.

Answer

&

or more

information

an employer under the Acts,

action must

from

20

year.

or more individuals.5 Larchmont Supp. Mem. 3,

5

Y

if

12111(5).

Plaintiff's

under

i.e.,

The Acts provide that an employer must have "15 or

current

2000e(b),

or

is

Carmi

has

it

not

notes

for

two

of 2009.

arising

under

the

States,"

28

district

courts

U.S.C.

provisions,

42

28

§

out

1331

of

1331,

U.S.C.

alleged

arose

§

so

§§

called

element

of

plaintiff's

issue."

546 U.S.

at 515.

15-employee

minimum

Title

VII

claim

requirement

in

jurisdictional

U.S.

claim

a

that

385,

2001)

reasoning

("Because

and because the
illegal
Title

provisions
the

ADA.

Gen.

515

two Acts

in

United

a

the

under

States
"an

jurisdictional

placed

that

have

in

(quoting

to

a

claim

247

the

Moes

bringing

a

numerosity

not

speak

in

jurisdiction of the

for

F.3d

and expressly

v.

Trans

World

relief

169,

176

refers

to

under

the

(4th

Cir.

Title

VII,

the same purpose—the prohibition of

employment—courts

ADA

of

(1982)).

Corp.,

the ADA echoes

precedent

their

discrimination

requisite

instead

394

applies

Motors

discrimination

VII

not

Zipes

U.S.

v.

relief,

the

Inc.,

Fox

under

U.S.

In Arbaugh,

The

or refer in any way to

Airlines,

See

grant

jurisdiction

513-14.

provision

at

ADA.

brought

United

15-employee requirement was

for

it

Id.

same

at

the

ADA

employment

jurisdictional

courts.'"

The

the

12117(a).

for

of

It reasoned that Congress could have made

district

455

and

actions

claim

"separate

terms

treaties

"federal-question"

Title VII' s

but

a

over

546

VII.

held that

the

VII

her

Supreme Court
a

or

2000e-5(f)(3),

because

Title

law,
Title

and

jurisdiction

plaintiff
U.S.C.

Constitution,

cases.").

Title

have

routinely

VII's

used

jurisdictional

apply to employment discrimination claims brought under
See

42

U.S.C.

§

12117 (a)
-5-

(incorporating

the

"powers,

remedies,

and procedures"

VII,

ADA'S

the

separate

of

See

Accordingly,

42

15-employee

provision

jurisdiction.

in

the

statute

U.S.C.

fact

§

2000e-5).

requirement

the

42

U.S.C.

that

§

appears

that

12111;

in

makes

has

Larchmont employed 15 employees during the

a

Title

completely

no

reference

546

Arbauqh,

Plaintiff

As with

U.S.

failed

to

515.

allege

to

at

that

relevant period does not

deprive this

Court of

subject matter jurisdiction over her claim.

See Arbaugh,

546

at

Failure

to

Larchmont

basis
See

is

U.S.

an

515.

plead

facts

"employer"

sufficient

under the Acts

will

at

515;

Fed.

consider

requirement

R.

Civ.

P.

Plaintiff s

as

one

of

the

grounds

plead

which

The

Fourth

Circuit

recently

joined

the

clarifying the distinction between a 12(b)(1)
lack

of

dismiss

subject
for

failure

granted.

See

F.3d

2012
a

court

right

has

12 (b) (6)

WL
a

to

the

Id.

at

under
Rules

in

power

{4th

claim

River

Cir.

hear

and

upon

[a

12(b)(6).

12(b)(6)
which

In

to

See Kern

Court

in

motion

relief

Seafood,

Holloway,

whether

at

dispose

whether

seeks

motion to dismiss for

Dockside

court

numerosity

Supreme

a

2012).

district

addresses

all

of

his

can

be

Inc.,

the

panel

[a plaintiff]

and

plaintiff]

to

whether

claim,
has

the

and

a

stated

a

a challenge to the sufficiency of the complaint."

of

action

challenging

pleaded

and

motion addresses

the

to

a

Pagan

It went on to say that
cause

rules

evidence

state

v.

"12(b){l)
be

motion

*3.

federal

jurisdiction

604155

cognizable claim,
a

to

Holloway

explained that
has

matter

the

the Court

Larchmont

dismiss Plaintiff's Complaint under Federal Rule

6

provide a

Accordingly,

to
on

however,

that

Plaintiff's Complaint.6

12(b)(6).

failure

demonstrate

does,

for challenging the sufficiency of

id.

to

to

12(b)(b)(6),

the

support

12(c),

"deficiencies

should normally be

or

sufficiency

the

complaint,

56."
-6-

Id.

in the statement of

addressed by a motion

of
such

the
as

complaint

or

authorized

by

v.

U.S.,

585

F.3d

187,

the

193

(4th

complaint

Cir.

asserts

that

support

subject matter jurisdiction,

standard patterned on Rule

the

facts alleged.");

2d 749,
and

752

(D.

Md.

construing

complaint

as

a

allege

that

challenge

the

facie

of

sufficient

the trial

Postal

12(b)(l)

to

Serv.,

643 F.

to

Supp.

of Arbaugh
plaintiff's

12(b)(6)).

Plaintiff's

numerosity

unlawful

facts

court must apply a

challenge

PLAINTIFF'S

lacks

defendant

and assume the truthfulness of

under Rule

Complaint

case

a

(recognizing the implications

challenging

employer

(w[W]hen

allege

U.S.

SUFFICIENCY OF

Plaintiff's

prima

Sadowski v.

2009)

In addition to

to

12(b)(6)

defendants'

III.

to

fails

2009)

COMPLAINT

Complaint

requirement,

sufficient

retaliation

for

failure

Larchmont

facts

under

to

argues

establish

Title

VII

or

a

the

ADA.7
Rule
statement

relief."

complaint
589

8

of

of

the

the

Fed.

R.

Federal

claim

Civ.

P.

Rules

showing

F.3d

appropriate

8(a)(2).

736,

738

of

a

where

(4th

the

Because

pro
the

se

Cir.

complaint

sufficiency of

7

motion

Larchmont's

also

a

pleader

February 23,

civil
under

-7-

plain

entitled

See Smith v.
the

is

Rule

to

her

Smith,
liberal

particularly

rights

Defendant

The Court
2012.

is

and

Plaintiff is pro se,

pleadings

complaint

that

"short

(explaining

raises

argues

proper defendant in this action.
Order dated

2009)

litigant's

examining the

its

that

a

is entitled to liberal construction.

construction

in

requires

issues).

12(b)(6),

Reed

is

In
the

not

a

addressed this argument

ECF No.

29.

Court

"begin [s]

plead to

by

state a

1937,

1947

[the]

claim"

complaint

favorable

F.3d

(2009).

to

187,

188

must

v.

.

Cir.

.

sufficient

the

S.

"accept

them

v.

Md.

facts

1950.

from

Court

at

for the

190;

see

alleged misconduct.

Francis

Fed.

R.

Giacomelli,

Civ.

discrimination,

that

v.

P.

"while

a

relief

y [f]actual
above

(quoting

the

Bell

(internal

facie case

speculative
Corp.

v.

Twombly,

the

Educ.

Enters.,

See

F.3d

2009);

employment
plead

survive

facts

a motion

raise

a

right

62

F.3d

544,

U.S.

is

at

555

to
to
190

(2007))

Employee Numerosity Requirement

alleged

requirements.

626

(4th Cir.

to

Coleman,

the

the defendant

required

to

"legal

infer

for

enough

550

can

claim

in order to

level,'"

Congress exempted employers
of

not

626

omitted).

A.

time

is

a

most

complaint

Coleman,

193

in

of truth."

the

Court

1949;

186,

In

allegations must be

Atl.

citation

plaintiff

at

F.3d

12 (b) (6).

constitute a prima

dismiss,

588

Id.

Ct.

of Appeals,

threadbare

plausibility rather than the mere possibility that

liable

S.

light

assumption

the

must

alleged

the

Ultimately,

which

129

facts

in

Nevertheless,

at

plaintiff

Iqbal,

the

entitled to the

Ct.

a

Ashcroft v.

Coleman

not

elements

construe

2010).

[are]
129

of

must

and

plaintiff."

Iqbal,

state

Court

true

(4th
.

note

for relief.

The

as

the

conclusion[s]
Ashcroft

taking

42

Inc.,

unlawful
U.S.C.

519

action

§§

U.S.

with

less

than

from

Title

2000e,

202,
-8-

205

12111;

(1997);

15

employees

VII

See

and

Walters

Depaoli

v.

at

the

the ADA's
v.

Metro

Vacation

Sales Assocs.,
U.S.

Supreme

requirement
claim.

See

Civil No.

L.L.C.,

489

Court

is

a

546

F.3d

indicated

threshold

U.S.

3:10cv491,

615,

at

622

in

element

(4th Cir.

Arbaugh,

the

of

a

Coles

v.

Deltaville

666050,

at

515;

2011 WL

2007).

(E.D.

retaliation

Boatyard,

Va.

the

15-employee

plaintiff's

*7

As

Feb.

LLC,

14,

2011)

(citing Arbaugh).
Plaintiff's
number

of

assert

in

number

of

individuals

received

her

a

from the

there

was

Compl.
and

will

Reply

attached
the
that

the

2,

Notice

Court cannot
Larchmont

alleged

ECF

.

.

employed

the

requisite

ADA

the

investigation

with

she

that

on

to

or
Cf.

Sue

to

any

statements

more

she

March

18,

revealed that

been

retaliated

failed.8
that

of

Plaintiff
her

that

2011

at
WL

PL's

"it

Disability Act

employees

Coles,

that

Defendants'

Unfortunately,

from mere

discrimination.

had

Larchmont

Plaintiff

27.

15

the

Plaintiff merely contends

Right

employed

Plaintiff

the American with

No.

of

infer

by

does

under

believe

the

nor

states

agency's
to

concerning

Complaint

Sue

efforts

In her Reply,

.

her

to

evidence

established

1

ever

Right

conciliation

2-3.
be

Larchmont

EEOC after the

Covered Entity under
PL's

a

statement

employed,

Instead,

of

no

Larchmont

that

sufficient

and
n

Reply

Notice

contains

that

employees.

2011,

against

Complaint

has

are

a

[sic]."
has

not

pleadings,

and

the Notice
the

time

666050,

exists
of

the

at

*7

8 Carmi's Answer states that the EEOC has not issued a ruling in
the

matter.

Carmi

Answer

5

3.
-9-

(dismissing

plaintiff's

complaint

where

he

failed

to

plead

the

numerosity requirement but allowing leave to amend because the EEOC

determination
brief,
of

letter,

which plaintiff

VII).

dismissed.

Accordingly,

Nevertheless,

Larchmont

employed

easily grant

remaining

for

to

leave

requirement,
grounds

his

opposition

of

the

complaint

existence

elements

of

of

Title VII

"(1)

action;

and

Plaintiff's

the

of

in

dispute

individuals

and

to amend her Complaint
Court

of

not

will

the
to

be
that

Court

can

include the

address

a Retaliation

required

the pleading
allow

the

elements.

prima

are:

employment
activity

a

at

is

must

such

number

should

Larchmont's

dismissal.

Plaintiff

retaliation

Complaint

the

be

the

B. Elements

Although

Plaintiff's

because

appears

Plaintiff

numerosity

in

to

stated that the defendant was an employer within the meaning

Title

case

attached

facie

See

case

of

is

a prima

factual

626

F.3d

infer

at

under

action."

insufficient

between

Id.

Larchmont

as

to

each

the

190.

The

the

a protected activity;

link

facie

allegations

plausibly

retaliation

causal

Complaint

to

Coleman,

and

employment

the

Court

in

a

establish

stage,

engagement

(3)

to

Claim

(2)

the

ADA

and

adverse

protected

argues

that

element.

1. Protected Activity

Larchmont
Complaint

argues

because

she

that
has

the

Court

should

failed to state

-10-

facts

dismiss

Plaintiff's

indicating

that

she

engaged

in

Larchmont.

any

The Court

Title

VII

provisions.
make

it

form

of

the

for

"made a

any manner

in an

forms

of

the

F.3d

engaging

Plaintiff's

this

testified,

Cir.

Complaint

proceeding,

statement

are

alone,

conduct

made

of

an

as

A

plaintiff

she

the

under

These

two

Airports Auth.,
may

See

"was

and

recover

for

id.

asked

to

write

a

justify her termination"

charge.

Court

Id.

oppositional

Metro Wash.

that

EEOC

PL's

cannot

Compl.

infer

that

f

2.

From

Plaintiff

proceeding,

nor can the Court

unlawful

an

or participated in

the Acts.

co-worker to

participated in an investigation,
under the Acts,

against

or hearing" conducted

known

1998).

states

[a]

filed

Both statutes

discriminate

form of protected activity.

co-worker

at

anti-retaliation

12203(a).

assisted,

See Laughlin v.

false statement against
the

employed

opposed a practice made unlawful by the

activity

(4th

in either

while

similar

to

enforcement provisions

259

after

1)

investigation,

protected

253,

employer

charge,

participatory conduct.
149

contain

§§ 2000e-3{a),

an

employee because she has

to

ADA

See 42 U.S.C.

Acts or 2)

activity

agrees.

and

unlawful

pursuant

protected

the

or hearing authorized

infer that

Plaintiff opposed any

Acts.9

Even

if

Larchmont

asked

9 The Fourth Circuit has found that the terms of the participatory
conduct clause are
protection

broader
Glover

for activity

than
v.

"meant

for

S.C.

falling under

activity

Law

to sweep broadly"

falling

Enforcement

-11-

"the scope of

the participation clause

under

Div.,

and that

170

the

opposition

F.3d

411,

is

clause."

414-415

{4th

Plaintiff
EEOC

to

write

charge,

during

an

false

there

EEOC

are

statements

no

facts

to

investigation.

after

her

suggest

Moreover,

co-worker

that

the

this

filed

request

Complaint

came

does

indicate whether Plaintiff complied with or refused the request.
fact,

the Complaint

fails

to allege

that

Plaintiff

activity whatsoever.

Because

Plaintiff's Complaint

the

a prima

facie

first element

be

dismissed.

of

The

Court

will

case of

fails

address

to the deficiencies

not

In

in any

to allege

retaliation,

nevertheless

remaining arguments with respect

engaged

an

it

should

Larchmont's

of

Plaintiff's

Complaint.

2. Adverse Employment Action

Larchmont
action

under

not

pled

was

concedes

the

demoted.

sufficient

plaintiff
To

or

the

Acts.

It

to

a

plaintiff

Chaplin

622,

(E.D.

decrease

in

is

an

argues

the

Court

adverse employment
that

to

Plaintiff

conclude

bar

for

that

a

pro

has
she

sets

the

pleading

s_e

claim

for

retaliation under Title VII

high.

suffered.

627

allow

argument

successfully plead a

ADA,

termination

nevertheless

facts

This

too

that

Va.

pay

responsibility,

Cir.

1999)

1186

(11th Cir.

v.

Du

(quoting

Pont

2003).

or
or

must

allege
Advance

reduced

Merritt
and

Fiber

Allegations

benefits,

1997)

that

loss

of

v.

Dillard

-12-

149

employment

Sys.,

of
job

opportunities

Lauqhlin,

her

F.

"discharge,
title

for

Paper
F.3d

293

or

Co.,
259

120

Supp.

2d

demotion,

supervisory

promotion

at

status

[are]

F.3d

n.4).

the

1181,

typical

requirements

action'.

.

.

."

Boone v.

The Court must
Complaint
not
of

as

for

true.

See

action

at

are

the

Plaintiff's

statement

sufficiently

'adverse

F.3d

that

at

she

in

1999).

Plaintiff s

Larchmont

has

beyond an

allegation

adverse

employment

an

the

Court

demoted her

suffered

employment

(4th Cir.

188.

facts

Accordingly,

Larchmont

255

allegations

demonstrate

stage.

that

an

F.3d 253,

626

suggesting
to

of

factual

Coleman,

that

alleges

178

the

required

pleading

showing

Goldin,

accept

cited any authority
demotion

a

an

finds

on August

adverse

7,

that
2009,

employment

action.
C. Causal

Link Between Protected Activity and Adverse
Employment Action

Assuming that

July

24

fails

and 29,

Plaintiff

2009,

to establish a

engaged

Larchmont
causal

of a

complaint
adverse

claim for

must

raise

employment

protected activity.
Valley,
causal

145

F.3d

connection

employment

proximity

action

is

very

To

Plaintiff's

Dowe v.

her termination and

that

because

the

between

be

close"

the

(4th

Cir.

plaintiff

1998).

protected

by

and

defendant

-13-

"An

temporal

third

facts

in

took

the
the

engaged

in

Poverty in Roanoke

activity

created

the

the

employer

Total Action Against

657

Complaint

satisfactorily plead the

inference

action

can

that

activity between

retaliation under the Acts,
the

653,

argues

connection between

the alleged protected activity.
element

in protected

inference
and

an

proximity,

had

knowledge

of

a

adverse

if

of

that

the

protected
Supp.

activity.

2d 770,

Visitors

789

Martin

(E.D.

v.

Va.

Scott

2009);

of George Mason Univ.,

"[G]enerally

the

passage

of

&

Stringfellow,

see

411

Constantine v.

F.3d

time

.

Inc.,

474,

501

.

tends

.

to

Fourth Circuit

a

protected

Conversely,

in

activity.

the

has held that

145,

151

of evidence

&

activity

n.5

of

(4th

Cir.

intervening

2003).

retaliatory

infer causation where the adverse employment

seven months after the employee engages

See Lettieri

v.

Equant

case,

to

Inc.,

478

F.3d

in protected

640,

650-651

(4th

2007).

In

the

instant

protected

activity,

Larchmont

had

terminated

protected

after

activity.

termination

of

is

such

too

allows

remote

alleged protected activity.

in

her

the

time

states

be

finds

causally
478

months

in

F.3d

In

Plaintiff's

linked
at

the

negative

termination.

that

was

alleged

ten

any

in

that

she

facts

experienced

Court

infer

in

no

and

engaged

that

roughly

are

demotion

to

to

engaging

There

See Lettieri,
-14-

Court

occurred

Plaintiff

facts,

the

after

demotion.

between

Plaintiff

Plaintiff

months

that

from Larchmont

it.

extent

termination

alleged

suggesting

absence

of

eleven

The

the

Complaint

knowledge

Plaintiff's

treatment

the

roughly

Complaint

the

F.3d

absence

a court cannot

action occurs

Cir.

the

328

the

negate

See

Rumsfeld,

between

2005).

adverse employment action may raise the inference of causation.

animus,

weeks

and

the

v.

ten

F.

and

King

of

Rectors

(4th Cir.

inference of discrimination," but the
period

643

651.

to

the

On the other hand,
and

that

the

demotion

Plaintiff has alleged that
occurred

approximately

engaged in protected activity.

Assuming

that

protected activity on or around July 24

demotion

was

sufficiently

causation.

See

finds

Plaintiff's Complaint

that

King,

328

proximate

F.3d

at

&

fails

weeks

Plaintiff

and

to

151

two

she was demoted

29,

n.5.

the

The

she

engaged

2009,

raise

after

her alleged

inference

Court

to establish

in

a

of

therefore

causal

link

between the alleged protected activity and her termination but that
her

Complaint

successfully

alleged protected

establishes

activity

and her
IV.

Plaintiff's
First,

Plaintiff

Larchmont

time

under

be

the

the

failing constitutes
to

Dismiss

granted.

leave

to

for

to

state

employees

whether

protected

fails

it

in

between

several

facts

for the

is

the

engaged

under

Title

activity

and

indicating

from

in

any

VII

establish

respects.
that

requisite period of

unclear

she

to

protected

or

a

the

activity

the

ADA.

causal

her

face

of

that

Third,

connection

termination.

Each

sufficient grounds to grant Larchmont's Motion

failure

Nevertheless,

cure

link

alleged demotion.

deficient

Second,

Complaint
alleged

is

or more

Complaint

causal

CONCLUSION

failed

Acts.

considered

Plaintiff's
between

has

employed 15

Plaintiff s

could

complaint

a

to

state

the

the defects

in

a

Court

claim
is

upon

willing

her Complaint

-15-

to

which
to

the

relief

grant

extent

can

be

Plaintiff

that

she

can,

in

good

faith,

plead

the

requisite

elements

of

a

claim

for

retaliation under Title VII or the ADA.10
Accordingly,
(ECF No.

23)

1.

facts

began

Court

and ORDERS

Plaintiff

relevant
that

the

on

the

shall

around

Larchmont's

Motion

to

Dismiss

following:

file

pertaining
or

GRANTS

to

an

Amended

July

alleging

adverse

her

Complaint
treatment

at

2009

all

Larchmont

on or before Friday,

March

16,

2012.

2.

Plaintiff

Complaint,
EEOC

and

EEOC.

the
the

She

3.
within

Notice

The

time

attach,

Right

to

any

shall

Court

notes

under

that

Title VII

the

of

basis

whereas
basis

Although

advised
proper

that
Act

Advance
*4

Stores

(E.D.

first

failure

may

Va.

prong

protected

Co.,

of

a

42

has

the

that

supports

Procedure
including

unable

to

determine

Title

related

U.S.C.
a

F.

claim
of

Supp.
that

VII

EEOC

discrimination).
-16-

to

or

or

whether

the

ADA'S

for

with

issue,

42

on

origin,

discrimination

the

her

discrimination

national

2000e-2

on

the

U.S.C.

Plaintiff

§
is

retaliation

under

the

claim.

See

Mobley

v.

WL

253112,

2d.

,

plaintiff

retaliation

an

to

§

raised

dismissal

was

from

documentation,

under

not

plead

VII

received

to the generally vague nature of her

(concluding

Title

activity

is

activity

Inc.,

the

Civil

sex,

to

with

of

related

warrant

2012)

Rule

activity

Larchmont

Amended

Plaintiff's Amended Complaint

religion,

Compare

the

filed

documentation

color,

the ADA protects

to

she

she

protects

race,

of disability.

12112.

that

Federal

falls

anti-retaliation provision due

that

supporting

it

properly

Complaint.

exhibits

and declarations.

respond to

allotted

claim

Sue

other

affidavits

Larchmont may attach

Plaintiff's

as

Discrimination

attach

including

the

of

of

also

Larchmont

15(a)(3).

10

Charge

may

her claim,

shall

claim

2012

failed
because

charge

for

to
the

meet

at
the

alleged

disability

affidavits

and

declarations,

as

exhibits

to

its

responsive

pleadings.
4.
this
later

The

matter

Final

shall

Pretrial

be

vacated

Conference
and

and

Jury

rescheduled

by

Trial
the

dates

Court

at

in
a

date.

5.

The Clerk shall promptly mail a

copy of this Order to the

Plaintiff.

IT

IS

SO

ORDERED

UNITED STATES MAGISTRATE JUDGE
Norfolk,

Virginia

February 1S\, 2012

-17-