Signore v. Bank of America, N.A. et al
Filing
41
MEMORANDUM OPINION AND ORDER that Bank of America, N.A.'s Motion to Dismiss is GRANTED in part and DENIED in part. BAC Home Loans Servicing's Motion to Dismiss is GRANTED. DISYS's Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiff is GRANTED leave to amend her complaint as to BAC and as to her ADA and ADEA retaliation claims within 15 days of the date of this Order. Signed by District Judge Raymond A. Jackson on 10/7/2013 and filed on 10/8/2013. (rsim, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
OCT
8 ?pj
Norfolk Division
J
CLERK, U.S. DISTRICT COURT
NORFOl KVA
JANICE SIGNORE,
Plaintiff,
CIVIL ACTION NO. 2:12cv539
v.
BANK OF AMERICA, N.A.,
BAC HOME LOANS SERVICING, LP,
and
DISYS,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are three Motions to Dismiss filed pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, filed by Defendants Bank of America, BAC
Home Loans Servicing, and DISYS. These matters have been fully briefed and are ripe for
judicial determination. For the reasons stated herein, Bank of America's Motion to Dismiss is
GRANTED IN PART and DENIED IN PART, BAC Home Loans Servicing's Motion to
Dismiss is GRANTED, and DISYS's Motion to Dismiss is GRANTED in part and DENIED in
part. Plaintiff is GRANTED leave to amend her complaint as to Defendant BAC Home Loans
and as to her retaliation claims.
I. FACTUAL AND PROCEDURAL HISTORY
On September 27, 2012, Janice Signore ("Plaintiff) filed a Complaint alleging that her
former employer, Defendant Bank of America, N.A. ("BANA"), and a subsidiary, BAC Home
Loans Servicing, LP ("BAC"), discriminated against her on the basis of her age, religious beliefs,
1
and disability while she worked as a contract employee for BANA. On December 19,2012,
Plaintifffiled an Amended Complaintthat added as a defendant DISYS, LLC, a corporation that
placed Plaintiff with BANA.
Plaintiffs Amended Complaint alleges that BANA hired Plaintiff through DISYS in June
2011 for a temporary positionas a Customer Relations Manager ("CRM") in the Modifications
Department at a BANA branch in Norfolk, Virginia. Am. Compl. U11. Plaintiffs affiliation
with BANA ended seven months later in January 2012 when she alleges she was constructively
discharged. Id. ffi| 22,28-29. Plaintiffis sixty-two years old and wasthe oldest member of the
group of CRMs. Id. fflf 12,28. Plaintiffhas had cancer twice, has battled Hodgkin's lymphoma
and suffers fatigue and a lack of stamina at the end of the work day. Id. ffl| 19-20. Soon after
beginning her training as a CRM, Plaintiffcame into conflict with Tammy Jackson, who was a
BANA employee and the supervisor of Plaintiffs group of CRMs. Id. ^ 12. Plaintiffalleges
that Jackson quickly began to single out Plaintiffbecause of her age. Id. U13. In one instance,
Jackson berated Plaintiff in front of her coworkers to the point that several coworkers offered
Plaintiff their help and support. Id. 114. In addition, Jackson allegedly targeted another older
woman, and stated that "old people get sick more than young people" in reference to Plaintiff
and immediately added "I guess I should not have said that" at a team meeting. Id. ffl[ 14, 17. At
another time, Jackson allegedly said that "you can always teach an old dog new tricks." Id.\\.
Plaintiff and a teammate went to their unit manager Brent Wentworth, a BANA
employee, to complain about Jackson. Id. \ 15. Jackson found out and "made it clear" that "she
did not like the fact that Plaintiff had gone over her head." Id. Plaintiff also voiced her concerns
that she was discriminated against because of her age to DISYS. Id. U 18. Plaintiff alleges that
DISYS instructed her to not "make waves" because she still had a job with BANA. Id.
Plaintiff also alleges that she was discriminated against based on her discomfort with
receiving daily Christian devotions verses from the Bible over office email. Id. 127. Plaintiff
does not indicate a religious affiliation. Jackson sent the emails to the CRM team and applied
her version of those texts to how the team behaved that particular day. Id. Plaintiff maintains
that the emails were designed to berate employees. Id. Plaintiff informed Jackson that the
emails made her uncomfortable, however Jackson continued to send them to the team. Id. Other
employees commented that they were offended by Jackson's lack of sensitivity to other religions.
Id.
Plaintiff also alleges that she was discriminated against because of a disability. Plaintiff
has had cancer twice, has battled Hodgkin's lymphoma and suffers from fatigue and a lack of
stamina at the end of the work day. Id. ffl| 19-20. Specifically, Plaintiff alleges that Jackson used
her inability to participate in the periodic "Snack Day" as a pretext to recommend Plaintiffs
termination. Id. 120. Employees took turns bringing in snacks on each successive Snack Day.
Id. Plaintiff felt that she may not be able to shop for snacks after work because of her fatigue
and low stamina, which result from her previous illnesses. Id. When Plaintiff attempted to
discuss an alternative with Jackson when it was Plaintiffs turn for Snack Day, Jackson became
upset and responded by sending an email to the team that "it was an unhappy day on snack day."
Id. Jackson subsequently cancelled Snack Day altogether. Id.
On Plaintiffs last day of employment, Jackson walked by Plaintiffs desk and said "good
morning." Id. ^ 22. Plaintiff did not respond immediately because she had her headset on while
helping a customer on the phone. Id. Jackson then said "You did not look at me when I said
good morning!" and then proceeded into Wentworth's office. Id. Plaintiff was then called into
Wentworth's office and questioned by Wentworth about Snack Day and not greeting Jackson
that morning. Id. H23. When she returned to her desk, Plaintiff received a phone call and email
from DISYS and was informed that she was on "final warning" despite Wentworth not
mentioning anything about the reprimand. Id. Plaintifffollowed up with Wentworth who also
claimed that he knew nothing about the final warning, so she believes that Jackson had Plaintiff
issued a final warning through DISYS without discussing it with Wentworth. Id. Plaintiff
alleges thatJackson's behavior was a strategic move to expedite Plaintiffs removal from BANA.
Id. 124. She says that all of her reviews up to the point of receiving the final warning were
stellar and that the issuance of the final warning was unwarranted and unexpected. Id.\2\.
Plaintiff tried to ignore the hurtful and embarrassing personnel practices she endured
while working in an environment that Plaintifffeels was hostile. Id. 125. She believed it was
futile and damaging to her health to continue working at BANA. Id. 129. On January 13,2012,
Plaintiff filed a Complaint with the Equal Employment Opportunity Commission ("EEOC")
against BANA and DISYS, alleging that she had been discriminated against based on age,
religion, disability, and retaliated against, because of BANA and DISYS's role in herdischarge
from employment and wrongful termination. Id. ^ 30. Plaintiffreceived right to sue letters for
both BANA and DISYS. Id. ffi| 31, 32. She alleges that there are emails consistent with her
claims, and that other employees could corroborate them as well. Id. U33.
Count 1 of the Amended Complaint alleges discrimination, retaliation, and a hostile work
environment in violation of the Americans with Disabilities Act ("ADA"). Count 2 alleges
unlawful discrimination under the Age Discrimination in Employment Act ("ADEA"). Count 3
claims religious discrimination in violation ofTitle VII ofthe Civil Rights Act ("Title VII").1 On
March 5,2013, BANA and BAC filed separate Motions to Dismiss. On March 28,2013,
1The AmendedComplaint also mentions the Virginia Human Rights Act, VA Code 2.2-3900. Am. Compl. U1. But
it only does so once, and does not lay out a causeof action or Count underthat provision. Accordingly, any claim
under that statute is considered abandoned.
Plaintiff filed her Oppositions to the motions. OnApril 9,2013, BANA and BAC filed Replies.
On March 22,2013, DISYS filed its Motion to Dismiss, to which Plaintiff filed an Opposition on
April 4,2013. On April 10,2013, DISYS filed its Reply. This matter is now ripe for judicial
determination.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action if the
court lacks subject matter jurisdiction. See 28 U.S.C. §§ 1331, 1332. The Court assumes thatall
factual allegations in the complaint are true where the opposing party contends that a complaint
fails to allege facts upon which subject matterjurisdictioncan be based. Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982). If the factual basis forjurisdiction is challenged, the plaintiff
has the burden of provingsubject matterjurisdiction. Richmond, Fredericksburg &Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To determine whether subject
matter jurisdiction exists, the reviewing court may consider evidence outside the pleadings, such
as affidavits or depositions, Adams, 697 F.2d at 1219, or whatever otherevidence has been
submitted on the issue. GTE South Inc. v. Morrison, 957 F. Supp. 800, 803 (E.D. Va. 1997). A
partymoving for dismissal for lack of subject matter jurisdiction should prevail only if material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as matter of law.
Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768.
Rule 12(b)(6) provides for dismissal of actions that fail to state a claim upon which relief
can be granted. See Fed. R. Civ P. 12(b)(6). The Supreme Court has stated that in order "[t]o
survive a motion to dismiss, a Complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (internal quotations omitted)).
Specifically, "[a] claim has facial plausibility when the pleaded factual content allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal,
556 U.S. at 678.
Moreover, at the motion to dismiss stage, the Court is bound to accept all of the factual
allegations in the Complaint as true. Id. at 678. However, "[tjhreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.
Assessing the claim is a "context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at 679.
III. DISCUSSION
A. BANA's Motion to Dismiss
DefendantBANA makes three arguments in support of its Motion to Dismiss. First,
Defendant argues that Plaintiffs Amended Complaint should be dismissed pursuant to Rule
12(b)(1) because the suit was not timely filed. Second, Defendant argues that the Amended
Complaint should be dismissed pursuant to Rule 12(b)(6) because BANA was not Plaintiffs
employer for the purposes of her claims. Third, Defendant argues that Plaintiffs Amended
Complaint should be dismissed pursuant to Rule 12(b)(6) because Plaintiff fails to state a claim
for discrimination under the ADA, Title VII, and the ADEA.
1. Lack of Subject Matter Jurisdiction: Timeliness
Title 42 U.S.C. § 2000e-5(f)(l) requires a plaintiff asserting an employment
discrimination claim to file suit in court within 90 days of receiving a right-to sue-letter from the
EEOC. The Fourth Circuit has held that a court does not have jurisdiction over a claim if the
plaintifffails to properlyexhaust administrative remedies as outlined within the relevant
statutory text. See Davis v. N.C. Dep't ofCorr., 48 F.3d 134, 140 (4th Cir. 1995). Defendant
asserts that Plaintiff failed to exhaust all possible administrative remedies by not filing her
employment discrimination claim within ninety days aftershe received a notice of a right-to-sue
letter from the EEOC and cannot go forward with the suit. BANA Mem. in Supp. 4. Plaintiff
filed her suit in federal court on September27,2012. Her Amended Complaint includes two
conflicting statements about her right-to-sue letter. First, it says that she "received notice dated
as mailed on June 27,2012 from the [EEOC]." Am. Compl. H6; Compl. K5. Second, it says
that she "received her right to sue letter regarding [BANA] on June 27, 2012." Am. Compl. ^
31; Compl. ^ 22. Plaintiffnow says that the second statement was a typographical errorand that
as indicated by the first statement, the right-to-sue letter was mailed, and not received, on June
27,2012. PI. Opp. to BANA Mot. to Dismiss 4. She attaches as an exhibit to her Opposition the
EEOC right-to-sue letter, which states that it was mailed on June 27, 2012.
Rule 6(d) of the Federal Rules of Civil Procedure (formerly Rule 6(e)) provides: "When a
party may or must act within a specified time after service and service is made [by mail], 3 days
are added after the period would otherwise expire
" The Fourth Circuit has applied this rule
where the date of receipt of an EEOC right-to-sue letter is in dispute. E.g., Nguyen v. Inova
Alexandria Hosp, 187 F.3d 630, 1999 WL 556446 (4th Cir. 1999) (unpublished). In Nguyen,
the court noted that where the actual receipt date is "unknown ... it is presumed that service by
regular mail is received within three days pursuant to Rule [6(d)]." Id. at *3; see also Baldwin
Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 (1984) (calculating the presumed date of receipt
of a right-to-sue letter by adding three days to the date of issuance pursuant to Rule 6(e));
Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 143 & n.3 (1st Cir. 2012) (applying a
"reasonable time" of three to five days to establish date of receipt and noting the approach of
other courts to apply three days under Rule 6(d)).
BANA contends that this presumption only applies where the date of receipt is
"unknown" or disputed and that here, Plaintiff herself affirmatively alleged in her Complaint that
she received the letter on June 27. Def. BANA Reply 2. But as just discussed, Plaintiffs
Complaint contains two conflicting statements, and her attached exhibit supports her contention
that her statement that she received the letter on June 27 was a typographical error. Therefore,
the Court concludes that the date of receipt is properly determined under Rule 6(d); after adding
three days, the time within which Plaintiff was required to file her suit elapsed on September 28,
2012—the day after she filed her Complaint against BANA. Therefore, BANA's Motion to
Dismiss for Lack of Subject Matter Jurisdiction is DENIED.
2. Failure to State a Claim: Employment Relationship
Defendant BANA alleges that Plaintiff was not its employee and therefore the claims
against BANA under Title VII, the ADEA, and the ADA must be dismissed. Those statutes have
nearly identical definitions of employers and employees. See 42 U.S.C. § 2000e(b) (Title VII)
(defining employer as "a person engaged in an industry affecting commerce who has fifteen or
more employees"); Id. § 12111(5)(A) (ADA) (same); 29 U.S.C. § 630(b) (ADEA) (defining
employer as "a person engaged in an industry affecting commerce who has twenty or more
employees"). See also 42 U.S.C. § 2000e(f) (defining employee as "an individual employed by
an employer"); Id. § 12111(5) (ADA) (same); 29 U.S.C. § 630(b) (ADEA) (same). Plaintiff and
Defendant do not dispute that BANA satisfies the statutory definition of an employer. PI. Opp.
to BANA Mot. to Dismiss 4. Instead, the issue is whether there was a sufficient employeremployee relationship between Plaintiff and Defendant.
Recognizing the circular definition of an employee in many employment statutes such as
the ones at issue here, the Supreme Court has concluded in an ADA discrimination case that
8
"when Congress has used the term 'employee' without defining it... Congress intended to
describe the conventional master-servant relationship as understood by common-law agency
doctrine." Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440,445 (2003)
(quotations omitted). The Fourth Circuit has concluded that this doctrine "emphasizes the
importance of the employer's control over the individual." Garrett v. Phillips Mills, Inc., 721
F.2d 979, 981 (4th Cir. 1983). In Garrett, the court addressed an age discrimination claim and
determined that control was the most important but not the only factor to consider when
assessing whetheran employment relationship exists, a case-by-case inquiry. Id. at 982. In
addition to control, the so-called "Garrett factors" include:
(1) the kind of occupation, with reference to whether the work usually is done
under the direction of a supervisor or is done by a specialist without supervision;
(2) the skill required in the particular occupation; (3) whether the "employer" or
the individual in question furnishes the equipment used and the place of work; (4)
the length of time during which the individual has worked; (5) the method of
payment, whether by time or by the job; (6) the manner in which the work
relationship is terminated; i.e., by one or both parties, with or without notice and
explanation; (7) whether annual leave is afforded; (8) whether the work is an
integral part of the business of the "employer"; (9) whether the worker
accumulates retirement benefits; (10) whether the "employer" pays social security
taxes; and (11) the intention of the parties.
Id. at 982; see also Mangram v. Gen. Motors Corp., 108 F.3d 61, 62 (4th Cir. 1997) (applying
the Garrett factors to an ADEA claim). In Clackamas, the Supreme Court relied heavily on the
EEOC's own definition of an employee, which looks to similar factors. 538 U.S., at 449-50
(citing EEOC Compliance Manual § 605:0009). The EEOC states that "all aspects of the
worker's relationship with the employer" must be considered, and looks to whether "[t]he
employer has the right to control when, where, and how the worker performs the job," and
whether "[t]he work is performed on the employer's premises," among numerous other factors.
EEOC Compliance Manual § 605:0009.
The facts alleged in the Complaint regarding Plaintiffs employment relationship with
DISYS and BANA point to some extent both against and in favor of an employment relationship.
The Garrett factors in Plaintiffs favor include the fact that Plaintiff worked at a BANA office,
Am. Compl. H1,and apparently was initially trained and later supervised there on a regular basis
by BANA employees, Id. ffi] 12,14,20. The primary factors that weigh in Defendant's favor are
that Plaintiff was hired only for a temporary position as a contractor, and was employedas a
CRM for approximately seven months between June 2011 andJanuary 2012. Id. ffil 1,2. See
Zhenlu Zhang v. Rolls-Royce Seaworthy Sys, Inc., 2012 WL 32413 (E.D. Va. Jan. 5,2012)
(finding that a project was only six months "weighed strongly" against an employment
relationship).
Finally, the Amended Complaint indicates that both DISYS and BANA were responsible
for Plaintiffs hiring, firing, and discipline—all keyaspects of the requisite control overPlaintiff.
It indicates that "[BANA] hired Plaintiff... through DISYS in June 2011 for a temporary
position." Id. U11. When Plaintiffbecame initially dissatisfied with her working conditions, she
complained with a unit manager at the BANA office and also complained to DISYS. Id. ffl| 15,
18. Finally, DISYS placed Plaintiffon "final warning," but, Plaintiffalleges, thatwas only at the
behest of her BANA supervisor at the office. Id. ffl[ 23,24. As Defendant concedes, a plaintiff
in an employment discrimination suit may have more than one employer under a "joint-
employment" theory. BANA Mot. in Supp. 5 (citing Evansv. Wilkinson, 609 F. Supp. 2d 489,
n.5 (D. Md. 2009)). See also Murphy-Taylor v. Hofinann, 2013 WL 4924031, at *19 (D. Md.
2013) (discussing joint and integrated employer tests in the Fourth Circuit). That DISYS exerted
control over Plaintiff in addition to BANA does not preclude BANA from being Plaintiffs
10
employer. Finally, the EEOC Compliance Manual gives an example of an analogous situation,
where an employeemight be considered to have two employers:
A staffing firm hires CP and sends her to perform a long-term accounting project
for a client. Her contract with the staffing firm states that she is an independent
contractor. CP retains the right to work for others, but spends substantially all of
her work time performing services for the client, on the client's premises. The
client supervises CP, sets her work schedule, provides the necessary equipment
and supplies, and specifies how the work is to be accomplished. CP reports the
number of hours she has worked to the staffing firm, which pays her and bills the
client. In these circumstances, despite the statement in the contract that CP is an
independent contractor, she is an employee of both the staffing firm and the
client.
EEOC Compliance Manual § 915.003. See also Magnuson v. Peak Tech. Servs., Inc., 808 F.
Supp. 500 (E.D. Va. 1992) (allowing plaintiff to survive summary judgment in similar situation).
In sum, although Defendant is correct that Plaintiff has not presented information to satisfy every
Garrett factor, Plaintiffhas pled sufficient facts regarding her employment relationship with
BANA to survive BANA's Motion to Dismiss. Accordingly, the Motion to Dismiss on that
ground is DENIED.
3. Failure to State a Claim for Discrimination under the ADA. Title VII. and the ADEA
i. Count I: ADA
BANA also seeks to dismiss the Complaint because Plaintiff has not pleaded facts
sufficient to support a viable ADA claim. In a failure to accommodate claim under the ADA:
a plaintiff establishes a prima facie case by showing (1) that he was an individual
who had a disability within the meaning of the statute; (2) that the [employer] had
notice of his disability; (3) that with reasonable accommodation he could perform
the essential functions of the position . . .; and (4) that the [employer] refused to
make such accommodations.
Rhoads v. F.D.I.C, 257 F.3d 373, 387 n. 11 (4th Cir. 2001). Defendant alleges that Plaintiff has
failed to establish any of the four elements of the failure to accommodate claim. BANA Reply in
Supp. 4. Plaintiff also alleges general discrimination and a hostile work environment. A
11
wrongful discharge claim requires a plaintiff to show that "(1) she was a qualified individual
with a disability; (2) she was discharged; (3) she was fulfilling her employer's legitimate
expectations at the time of discharge; and (4) the circumstances of her discharge raise a
reasonable inference of unlawful discrimination." Rohan v. Networks Presentations LLC, 375
F.3d 266,272 n. 9 (4th Cir. 2004). Similarly, a hostile work environment claim requires a
plaintiff to demonstrate that "(1) she is a qualified individual with a disability; (2) she was
subjected to unwelcome harassment; (3) the harassment was based on her disability; (4) the
harassment was sufficiently severe or pervasive." Id.
The ADA defines "disability", as stated in the first element of all of the above ADA
claims, as "a physical or mental impairment that substantially limits one or more major life
activities ...." 42 U.S.C. § 12102(1)(A). Major life activities are defined broadly as including
"caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working." 42 U.S.C § 12102(2)(A). In addition, having a physical or
mental impairment is not sufficient on its own to establish a disability under the ADA, nor is
showing that the impairment merely affects one or more major life activities. Instead, an
individual must also show she is substantially limited as a result of the impairment. The
implementing regulations clarify that "substantially limits" "shall be construed broadly in favor
of expansive coverage" and need not "prevent, or significantly or severely restrict, the individual
from performing a major life activity." 29 C.F.R. § 1630.2(j). Nonetheless, "not every
impairment will constitute a disability" and an individual must be limited "as compared to most
people in the general population." Id.
12
Plaintiff simply alleges that she suffers from fatigue and lack of stamina at the end of the
day due to her prior battles with breast cancer and Hodgkin's lymphoma. Am. Compl. U20.
Plaintiff felt that she "might" not be able to shop for the snacks after a full ten hour workday
because of that fatigue. Id. She says that she "was not able to participate fully in extracurricular
activities" because of having had cancer twice. Id. U 19. The Fourth Circuit has held that "an
employee under the ADA is not substantially limited if he or she can handle a forty hour work
week but is incapable of performing overtime due to an impairment." Boitnott v. Corning Inc.,
669 F.3d 172, 175 (4th Cir. 2012) (internal quotations omitted). Plaintiff has made no claim that
she could not handle the regular demands of the work week, nor does she provide specific
information about any impact of her alleged impairment on her life's activities other than
implying that she may have been too tired on one occasion to shop after work. Cf. Nance v.
Quickrete Co., 2007 WL 1655154, at *3 (W.D. Va. June 5,2007) (finding that a plaintiff was not
disabled where "his only limitation is being able to drive a truck more than eleven hours a day").
Plaintiff simply has failed to "state a claim to relief that is plausible on its face." Twombly, 550
U.S., at 570. Accordingly, BANA's Motion to Dismiss Plaintiffs ADA claims is GRANTED,
except for the ADA retaliation claim, which will be discussed below. See infra n. 2.
ii. Count II: ADEA
Defendant also moves to dismiss Plaintiffs claim for discrimination under the ADEA.
Under 29 U.S.C. § 623(a)(1), an employer is not permitted "to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employmentbecause of such individual's age."
The Fourth Circuit has outlined two ways for a plaintiff to establish an age discrimination claim.
Under the first method, a plaintiff may present direct evidence of discrimination. Hill v.
13
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,284 (4th Cir. 2004). See also Gross v.
FBL Fin. Svcs., Inc., 557 U.S. 167, 178-79 (2009) ("A plaintiff must prove by a preponderance
of the evidence (which may be direct or circumstantial) that age was the 'but-for' cause of the
challenged employer decision."). Under the second method, known as the McDonnell Douglas
burden-shifting framework, a plaintiff must show that the "employer's proffered reason for
taking adverse employment action is actually a pretext for discrimination." Hill, 354 F.3d at
285.
Defendant argues that Plaintiff cannot satisfy the direct evidence test for an ADEA claim
because Plaintiff failed to allege sufficient facts to establish employment discrimination based on
age. BANA Reply in Supp. 6. But Plaintiff points to two pieces of evidence of direct
discrimination. First, she says that her supervisor Jackson remarked that "old people get sick
more than young people" and added "I guess I should not have said that." Am. Compl. H17.
Further, she alleges that Jackson "maintained] on at least one occasion that 'you can always
teach an old dog new tricks.' " Id. U1. Plaintiff also says that Jackson "did the same thing" to
another older woman in the workplace. Id. ^ 14. Even Defendant acknowledges that the
Jackson's comments were "close in timing" to Plaintiffs alleged constructive discharge. BANA
Reply in Supp. 6. And Jackson allegedly had a key role in that constructive discharge. Id. \ 22,
23. She also alleges that she was denied the opportunity to advance because of her age. Id. K48.
Plaintiff has therefore pled sufficient facts to make out a plausible claim for relief under the
ADEA, and so the Court need not address the McDonnell Douglas framework at this stage of the
litigation. See Craddock v. Lincoln Nat. Life Ins., 2013 WL 3782786, at *3 (4th Cir. 2013).
BANA's Motion to Dismiss Plaintiffs ADEA claim is therefore DENIED.
14
iii. Count III: Title VII
Plaintiff now concedes that she has failed to make out a viable claim for discrimination
based on her religion in violation of Title VII. PI. Opp. to BANA Mot. to Dismiss 9 ("Plaintiff,
however, does not contest Defendant's argument that Plaintiff fails to make a claim for
discrimination based on her religion."). Accordingly, BANA's Motion to Dismiss Plaintiffs
Title VII claim is GRANTED.
iv. Retaliation
Finally, Plaintiff argues that BANA's Motion to Dismiss should be denied because she
has made out a claim for retaliation based onher age and alleged disability.2 PI. Opp. to BANA
Mot. to Dismiss 8. See 29 U.S.C. § 623(d) (ADEA) ("It shall be unlawful for an employer to
discriminate ... because [an employee] has opposed any practice made unlawful by this section .
..."); 43 U.S.C. § 12203 (ADA) ("No person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter."). To make out a
viable claim under either provision, "a plaintiff must allege that (1) the plaintiff engaged in
protected activity,... (2) the employer took adverse employment action against the plaintiff; and
(3) a causal connection existed between the protected activity and the adverse action." Krone v.
CapitalOne Servs., 314 F. Supp. 2d 589,610 (E.D. Va. 2004).
Throughout her complaint, Plaintiff alludes to various facts that might satisfy the first
element of a retaliation claim. As to her ADEA claim, she notes, for example, that she
complained to a unit manager about Jackson, and that she mentioned to DISYS that "she was
being discriminated against because of her age." Am. Compl. ffl| 15, 18. But she does not
explain what specifically she complained to the unit manager about. She also says that Jackson
2Although theCourt has already rejected Plaintiffs claim of discrimination based on disability, "[a]
plaintiff may prevail on a disability-retaliation claim even if the underlying claim of disability fails." Bryson v. Regis
Corp., 498 F.3d 561, 577 (6th Cir. 2007).
15
found out about her complaint and "made it clear later that day that she did not like the fact that
Plaintiff had gone over her head." Id. U 15. As to her ADA claim, she only says that she
attempted to discuss an alternative to Snack Day with Jackson, and that Jackson responded by
sending an email saying it was an unhappy day and cancelling Snack Day. Id. 120.
But neither cancelling Snack Day nor telling Plaintiff that she should not have gone over
a supervisor's head rises to the level of an adverse employment action. E.g., Griffin v. Potter,
356 F.3d 824, 829 (7th Cir. 2004) ("General hostility and comments do not qualify as actionable
adverse employment actions unless the hostility was severe and pervasive."). Plaintiff does
allege that Jackson gave her a "final warning" as a "strategic move to expedite Plaintiffs
removal from the office," despite the fact that her performance reviews had been positive. Id. ffl|
21,24. Plaintiff also contends she was constructively discharged. But she does not causally link
these potential adverse employment actions with her earlier complaints. See Univ. ofTex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (retaliation claims must show but-for causation).
And Plaintiff does not explicitly mention any retaliation relating to her age in Count II of her
Complaint. Id. ffl[ 43-48. Instead, she says conclusorily that BANA "retaliated against Plaintiff
because of her illness," id. H39, and that (also in the context of her ADA claim) DISYS was
"aware of the unlawful... retaliation." Id. ^ 42.
Accordingly, Plaintiff has failed to identify a plausible claim for relief for an ADEA or
ADA retaliation claim, and BANA's Motion to Dismiss Plaintiffs claims of retaliation is
GRANTED. However, Plaintiff is GRANTED leave to amend her complaint on the ADA and
ADEA retaliation claims within fifteen (15) days of the date of this Order.
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B. BAC's Motion to Dismiss
Defendant BAC has filed a Motion to Dismiss under Rule 12(b)(6) on the grounds that
the Amended Complaint"is devoid of any allegation against BAC." BAC Mem. Supp. Mot. to
Dismiss. As BAC notes, the Amended Complaint's sole mention of BAC is that it "is a
subsidiary of [BANA],... employs over 500 individuals and is an employer engaged in
interstate commerce subject to Title VII, the ADA, and the ADEA. But in her Opposition to
BAC's Motion, Plaintiff alleges that BANA is BAC's successor by merger as of July 20,2011.
She says that absentdiscovery it is impossible to discernthe precise corporate structure. PI.
Opp. to BAC Mot. to Dismiss 4. BAC repliesthat Plaintiff is bound by her Amended
Complaint, and that dismissal is propereither way: If BAC is an independent subsidiary, it says,
then the Complaint must contain allegations against it; but if BANA is a successor to BAC, then
the suit is properly brought only against BANA. But see In re Lacey, 480 B.R. 13, 19 n. 6.
(Bankr. D. Mass. 2012) (granting BANA's motionto be substituted as defendant where plaintiff
incorrectly identified BAC as the defendant, and noting that BANA was BAC's successor by
merger on September 1, 2011). See also Kroetch v. BAC Home Loan Servs., 2011 WL 4502350,
at *1 n.l (N.D. Cal. Sept. 27, 2011) ("Effective July 1,2011, [BAC] merged with and into
[BANA].... [BANA] is successor by merger to [BAC] and, as a matter of federal law, is
deemed to be the same company as [BAC]
").
Because the Amended Complaint does not contain any allegations against BAC, and
Plaintiffs subsequent briefing cannot substitute for the pleadings in her complaint, BAC's
Motion to Dismiss is GRANTED. However, Plaintiff is GRANTED leave to amend her
complaint regarding BAC within fifteen (15) days of the date of this Order.
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C. DISYS's Motion to Dismiss
1. ADA
DISYS moves for dismissal of Plaintiff s ADA hostile work environment claim because
it says she failed to exhaust administrative remedies by raising such a claim in her charge filed
with the EEOC. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). But a
hostile work environment claim is simply a specific form of a claim for discrimination,
Burlington Indus, v. Ellerth, 524 U.S. 742,752 (1998), and the EEOC charge said that Plaintiff
had been discriminated against based on a disability. Moreover, a Plaintiff fails to exhaust only
when the "administrative charges reference different time frames, actors, and discriminatory
conduct than the central factual allegations in [the] formal suit." Chacko v. Patuxent Inst., 429
F.3d 505, 506 (4th Cir. 2005). And the facts alleged in the EEOC charge are reasonably related
to those that form the basis of a hostile work environment claim in her Amended Complaint.
Therefore, DISYS's Motion to Dismiss for lack of subject matter jurisdiction is DENIED.
Nonetheless, as discussed above in the context of BANA's Motion to Dismiss, Plaintiff
has not shown that she is disabled and has also failed to show a causal connection between any
adverse employment action and any protected activity. Therefore, DISYS's Motion to Dismiss
Plaintiffs ADA claims is GRANTED.
2. ADEA
DISYS raises largely the same reasons as BANA in contending that Plaintiff has failed to
state a claim of age discrimination under the ADEA. It argues, for example, that there was no
causal connection between Jackson's comments and any adverse employment action. For the
reasons discussed above, DISYS's Motion to Dismiss Plaintiffs ADEA claims is DENIED as to
her discrimination claims but GRANTED as to her retaliation claim.
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3. Title VII
Because Plaintiff has conceded that she fails to raise a viable claim of discrimination
based on religion under Title VII, DISYS's Motion to Dismiss her Title VII claim is
GRANTED. Pltf. Mem. Opp. DISYS's Mot. to Dismiss 8.
IV. CONCLUSION
For the reasons stated above, BANA's Motion to Dismiss is GRANTED in part and
DENIED in part. BAC's Motion to Dismiss is GRANTED. DISYS's Motion to Dismiss is
GRANTED in part and DENIED in part. Plaintiff is GRANTED leave to amend her complaint
as to BAC and as to her ADA and ADEA retaliation claims within fifteen (15) days of the date
of this Order.
The Court DIRECTS the Clerk to send a copy of this Order to the parties.
IT IS SO ORDERED.
Raymond A. Jackson
United States District Judge
Norfolk, Virginia
October 7,2013
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