Dr. Archie Earl v. Norfolk State University et al

Filing 21

OPINION AND ORDER Granting 13 Motion to Dismiss for Lack of Jurisdiction For the reasons stated above, Defendants' Motion to Dismiss is GRANTED. Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. Plaintiff is ORDERED to file within fourteen (14) days, if desired, a Second Amended Complaint curing the deficiencies identified in this Opinion and Order. IT IS SO ORDERED. Signed by District Judge Mark S. Davis and filed on 2/13/14. Copies distributed to all parties 2/13/14. (ldab, )

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
Norfolk Division

DR. ARCHIE EARL,

Plaintiff,
Civil No.:

2:13cvl48

NORFOLK STATE UNIVERSITY,
THE

BOARD OF VISITORS

OF

NORFOLK STATE UNIVERSITY, and
THE COMMONWEALTH OF VIRGINIA,

Defendants,

OPINION AND ORDER

This

filed

by

Norfolk

matter

Norfolk
State

is

before

State

the

Court

University,

University,

and

the

on

the

the

motion

Board

of

Commonwealth

to

dismiss

Visitors
of

of

Virginia

(collectively "Defendants"),

pursuant to Federal Rules of Civil

Procedure 12(b)(1)

and

After examining the briefs and the

record,

determines

the

Court

(6).

that

oral

argument

is

unnecessary

because the facts and legal contentions are adequately presented

and oral argument would not aid in the decisional process.
R.

Civ.

P.

forth below,

78(b);

E.D.

Va.

Loc.

R.

7(J).

For

the

Defendants' motion to dismiss is GRANTED.

reasons

Fed.
set

I.

Dr.
male

Archie

FACTUAL AND PROCEDURAL HISTORY1

Earl

Associate

("Plaintiff")

Professor

in

the

is

a

state

supported"

of Virginia."

Id.

university

SI 2.

"66

Department

Norfolk State University" ("NSU") .
"is

a

year
of

S[ 1.

inequities

In
in

2006,
faculty

located

Committee

salaries."

having discovered errors

in

of

members."

"departmental

Id.

began

Id.

SIS! 9-10.

faculty,"

salary

"Chair of the

("the Committee") .

to

study
The

"gross

Committee,

by

conducted a study of "sample data"
data"

accessible

During

and white faculty,

Plaintiff's

NSU

to the Committee

"the

by

"woefully

ongoing

"with respect to

and younger faculty,

was

"Committee

Committee's

analysis," Plaintiff claims he discovered that,
recent hires,

at

"the Commonwealth

SI 9.

in data provided

NSU's Human Resources Office,
consisting

Mathematics

Plaintiff also serves as

the

Black,

PL's Am. Compl. SI l.2

NSU Faculty Salary Issues Research Committee"

Id.

old,

and female

inadequate,"

even

1 The facts recited here are drawn from the Complaint and are
assumed true for the purpose of deciding the motion currently before
the Court.
They are not to be considered factual findings for any
purpose other than consideration of the pending motion. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (observing that "when ruling on a
defendant's motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint"); Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009)
("[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts
all well-pled facts as true and construes these facts in the light
most favorable to the plaintiff in weighing the legal sufficiency of
the complaint.").

2 Plaintiff originally filed his Complaint on March 21, 2013, ECF
No. 1, but filed an Amended Complaint on August 12, 2013, ECF No. 12.
Thus,
the Court recites the facts alleged in Plaintiff's Amended
Complaint.

though

Plaintiff

responsibilities

"was

of

the

at

least

job were

as

qualified"

and

"the

essentially equivalent."

Id.

SI 11.

When

Plaintiff's

administration"
the

Equal

Virginia

failed,

Employment

Council

the basis

of

on

race,

"attempts

he

at

began

Rights,

gender,

and

with

the

proceedings"

"grievance

Opportunities

Human

discussions

with

Commission

"alleging

age."

Id.

("EEOC")

and

the

discrimination
Plaintiff

filed

on
a

charge of discrimination with the EEOC "on December 8, 2011" and

the EEOC "issued a right-to-sue letter to
21,

2012."

Id.

was

. . . triggered a wave of

hostile

forced

December

Plaintiff alleges that his "decision to file an

EEOC complaint
created a

Plaintiff on

to

retaliatory acts

and intimidating environment

operate."

Id.

1 20.

that

within which

Plaintiff's

Amended

Complaint lists the following "retaliatory acts" by Defendants:
•

Denial

of

Plaintiff's

"most

recent

request

for

sabbatical leave;"

•

Denial

of

Plaintiff's

report,

as

to

present

Faculty Senate president,

the Board of Visitors"

•

"right

Omission

of

Visitors

. . .

("BOV")

Plaintiff s
from

March and December,

the

2011;

oral

at meetings of

in 2011 and 2012;

"reports
BOV

an

to

meeting

the

he

Board

of

handbook"

in

•

Demand for copies of Plaintiff's "emails pertaining
to

the most

26,

•

recent

presidential

search" on October

2010;

Disposal of Faculty Senate property in Fall 2011 and
blaming

Plaintiff

for

failing

to

Plaintiff

obtain

or

"proper

authorization;"

•

Refusal

to

meet

with

communications"
2012;

•

on

September

6,

"respond to

2011

and

his

July

3,

and

Attempts

"to

[Plaintiff's]

induce

the

Provost

to

terminate

contract with [NSU]" from January 2010

through February 2011.

Id.

SI 20.

effect

Plaintiff alleges

of

feelings

subjecting

of

insecurity

belittlement."

forced

"to

the

Id.

that

Plaintiff

in

his

Furthermore,

operate

in

Defendants'

an

to

job,

"actions had the

public

public

embarrassment,

ridicule,

[and]

Plaintiff contends that he was

environment

that

was

hostile

and

permeated with discriminatory intimidation,

and insult that was

sufficiently

conditions

severe

as

to

alter

the

employment, creating an abusive working environment."
On
Court,
Title

March

21,

2013,

"individually,
VII

claims,"

Plaintiff

filed

a

and as a class action,

alleging

violations

VII of the Civil Rights Act of 1964

by

of

his

Id.

Complaint

in

this

with respect to the
Defendants

("Title VII"),

of

Title

the Equal Pay

Act

("EPA"),

("ADEA").

and

2013,

Title VII."

[by

Id.

statistical

SI 13.

of

the

Motion

contends

"a

based

to

Act

Dismiss

on

that

pattern

on

race

ECF No.

or

...

12.

"inferential
practice

of

violation

of

in

Plaintiff further alleges that "similar

revealed

that

men,

in

[EPA]."

"discriminat[ed]

violation

Plaintiff

NSU],

against

violation of the

Employment

Plaintiff filed an Amended Complaint

show

analyses"

discriminating

filed a

in

adding a claim of retaliation.

analyses"

discrimination

Discrimination

4.

Amended Complaint,

statistical

NSU

Defendants

ECF No.

on August 12,

his

Age

1.

ECF No.

July 22, 2013.

In

the

and

ADEA,

its

both

of

impermissibly

women,

...

in

Plaintiff also alleges that
aged

"in

"was

favor

Id. f 14.

against

NSU

(over

terms

40)

of

faculty"

salary"

and

in

with

respect to its "new policy of post tenure review," which "has a
discriminatory
Plaintiff's

by

treatment

its

discrimination

filed a

of

the

alleges

the

second Motion

to

and
.

for

for
NSU

faculty,

with

faculty."

Defendants

inequities,

critic
of

older

Complaint

the

salary

persistent

on

Amended

"retaliation
against

impact

.

.

Id.

that

led
been

administration
for

his

EEOC."

Dismiss

having
Id.

on August

Finally,

Plaintiff

having

having

SI 15.

in
a

for
filed

the

fight

vocal
its

2013.

and

uneven

charges

SI 20.

27,

endured

of

Defendants

ECF No.

13.

Defendants'

second Motion to Dismiss has been fully briefed

and is therefore ripe for review.3
II.

A.

STANDARD OF REVIEW

Subject Matter Jurisdiction - Rule 12(b)(1)

A party may move to dismiss an action for

lack of subject

matter jurisdiction pursuant to

Federal Rule of Civil

12(b)(1).

jurisdiction

The

party

asserting

"has

the

proving that subject matter jurisdiction exists."
Perkins

Co.,

considering
court

a

should

issue,

166

motion

647

dismiss

the

consider

the

642,

to

"regard

and may

converting

F.3d

pleadings

to

facts

are

prevail

as

not
a

in

dispute

matter

of

B.

a

complaint,

or

Civil

a

plaintiff's "failure to
granted."

Rule

and

the

Id.

moving

the

evidence

the

pleadings

on

a
the

without

judgment."

party

moving

When

12(b)(1),

mere

summary

of

Id.

jurisdictional

is

entitled

to

motion

to

party's

(internal citation omitted).

Failure to State a Claim - Rule 12(b)(6)

Federal Rule of

of

for

1999).

When "the material

law,"

dismiss should be granted.

outside

one

(internal citation omitted) .

as

to

burden

Evans v. B.F.

Cir.

pursuant

evidence

proceeding

(4th

Procedure

Fed.

R.

Procedure

claim

within

12(b)(6)

a

permits dismissal

complaint,

state a claim upon which

Civ.

P.

12(b)(6).

A

based

on

the

relief can be

motion

to

dismiss

3 Plaintiff's filing of his Amended Complaint mooted Defendants'
first Motion to
Defendants'

Dismiss,

ECF No.

4.

second Motion to Dismiss,
6

Thus,
ECF No.

the
13.

Court

considers

only

pursuant to Rule 12(b) (6)
8(a)(2),

which

requires

must be read in conjunction with Rule
"a

short

and

plain

statement

of

relief,"

Fed.

R.

notice

of

claim showing that the pleader is entitled to
Civ.

P.

8(a)(2),

what the
Bell

as

to

"'give

. . . claim is and

Atl.

Conley

so

Corp.

v.

355

defendant

fair

the grounds upon which it rests,'"

Twombly,

Gibson,

original).
pleading

v.

the

the

550

U.S.

U.S.
41,

544,
47

555

(2007)

(1957))

(quoting

(omission

in

The United States Supreme Court has interpreted the

standard

set

forth

in

Rule

8(a)

as

requiring

that

a

complaint include enough facts for the claim to be "plausible on
face"

its

and

thereby

"raise

a

right

to

relief

speculative level on the assumption that all

is

(internal citations omitted).
"not

more

akin

than

to

a

a

^probability

sheer

Ashcroft

v.

Iqbal,

550 U.S.

possibility"
556

complaint

without

"'must accept

as

in the complaint'

of

the

12(b)(6)

resolving
true all
and

plaintiff.'"

Montgomery

Cnty.,

662,

Id. at 555,

The plausibility requirement
requirement,'

that

684

678

a

but

it

defendant

motion tests the
factual

of

the

'draw all

462,

disputes,

factual

is

467

(quoting

for

liable.

a

district

inferences

Volunteer
(4th

Twombly,

sufficiency of a

allegations

reasonable

Kensington
F.3d

(2009)

asks

at 556).

Because a Rule

U.S.

the

the allegations in

the complaint are true (even if doubtful in fact)."
570

above

Cir.

Fire
2012)

court

contained
in

favor

Dep't

v.

(quoting

E.I,

du

Pont

435,

440

de

Nemours

(4th Cir.

&

Co.

2011)).

v.

Kolon

Indus.,

Accordingly,

Inc.,

"'Rule

637

F.3d

12(b)(6)

does

not countenance . . . dismissals based on a judge's disbelief of

a complaint's

factual allegations.'"

(quoting

Neitzke

(omission

in

v.

Williams,

original).

A

Twombly,

490

U.S.

complaint

may

motion to dismiss "even if it appears
remote and unlikely.'"
232,

Id.

319,

at

327

therefore

555

(1989))

survive

a

'that a recovery is very

(quoting Scheuer v. Rhodes,

416 U.S.

236 (1974)).

Although the truth of the facts
assumed,

facts" and "need not

inferences,

unreasonable

Mkts.,

v.

Inc.

2000).

J.D.

consider documents
dismiss

'so

long

Assocs.

Ltd.,

authentic.'"
(quoting

v.

Pitt

213

F.3d

Volunteer

175,

Fire

Mem'1

180

E.

Shore

(4th Cir.

a district court

complaint

integral

Cnty.

arguments."

motion,

the

are

or

true unwarranted

to

or
the

Dep't,

Hosp.,

the

motion

complaint

684

572

"may

F.3d

F.3d

at

to
and
467

176,

180

Court

has

2009)).

employment

that

a

establishing
framework

they

Kensington

Philips

(4th Cir.

attached to
as

accept as

conclusions,

In ruling on a 12(b)(6)

In

alleged in a complaint is

district courts are not bound by the "legal conclusions

drawn from the

held

550 U.S.

set

discrimination

complaint

a

prima
forth

need

facie

...

cases,
not

case

Supreme

"contain

of

in McDonnell
8

the

specific

discrimination
Douglas

Corp.

facts

under
v.

the

Green,

411

U.S.

506,

508

792

(1973)."

(2002).

...

requirement."

not, however,

v.

Sorema,

N.A.,

534

U.S.

The Court explained that the "prima facie case

under McDonnell Douglas
pleading

Swierkiewicz

is an evidentiary standard,

Id.

at

510.

The

Fourth

not a

Circuit

"has

interpreted Swierkiewicz as removing the burden of

a plaintiff to allege facts sufficient to state all the elements
of

[his]

761,

claim."

765

contain
mere

(4th Cir.

"detailed

"labels

elements
at

Bass v. E.I.

and

2003) .

factual

Dupont de Nemours & Co.,

Thus,

although a complaint need not

allegations,"

conclusions"

324 F.3d

or

a

a

complaint

"formulaic

of a cause of action will not

do."

containing

recitation

Twombly,

of

the

550 U.S.

555.
III.

DISCUSSION

Defendants argue that Plaintiff's "entire Amended Complaint
should be dismissed"

because

his

ADEA claims

"are

not

within

the

subject matter jurisdiction of this District Court" and because
his

EPA

and

Title

VII

claims

"fail

for which relief may be granted."
Having

reviewed

the

relevant

to

state

Defs.'

legal

a

cause

of

action

Br. at 2, ECF No.

standards,

the

Court

14.
will

consider each cause of action in turn.
A.

Plaintiff s

Amended

ADEA Claim

Complaint

alleges

that

Defendants

violated the ADEA by treating older faculty "unequally in terms
of

salaries" and NSU's

"Post Tenure Review policy."

PL's Am.

Compl.

SI 19,

"ADEA

ECF No.

claims

are

Defendants

barred

Plaintiff failed to
against

12.

by

the

"bring his

the proper

respond

Eleventh

that

Plaintiff's

Amendment"

because

injunctive and declaratory claim

state official."

Defs.'

Br.

at

7,

ECF No.

14.

1. Sovereign Immunity
It

is

provide

well-established

for

federal

726

721,

Garrett,
528

(2004)

531 U.S.

U.S.

62,

72-73

Postsecondary

Ed.

Louisiana,

also

extends

Lee-Thomas v.
(4th

Cir.

519 U.S.

425,

in

Id.

the

Sav.

Regents

Fla.

Bank

U.S.

44,

"The

Pub.

Ala,

v.

of Regents,
Fla.

Prepaid

(1999);

54

(1996);

States'

Hans

immunity

instrumentalities.'"

Sen.,

the

538

669-70

666,

state

of

v.

against

of

Bd.

not

Hibbs,

of Univ.

U.S.

and

666 F.3d 244,

Univ.

of

Cal.

v.

248
Doe,

(1997)).

Amendment

(quoting

Hudson

Congress

may

bar

of

the

to

Corp.

suit

v.

abrogate

immunity "'by making its

language

Trs.

(1890)).

agents

(quoting

429

(1990)).

Amendment

15

v.

517

Prince George's Cnty.

Eleventh

however."

Florida,

1,

suits

Kimel v.

527

does

Human Res,

of

Coll.

Bd.,

v.

U.S.

Bd.

(2001);

(2000);

'state

2012)

"'The

304

134
to

363

Fla.

Constitution

over

Pep't of

(citing

Expense

Seminole Tribe of

v.

Nev.

356,

the

jurisdiction

nonconsenting States."
U.S.

"that

statute,'"
10

is

Feeney,
a

not

4 95

state's

absolute,'

U.S.

299,

Eleventh

intention unmistakably clear

Dellmuth

v.

Muth,

491

U.S.

223,

228

U.S.

234,

permits

(1989)

(quoting Atascadero State Hosp.

242

suits

(1985)).

for

In

addition,

prospective

"'the

injunctive

v.

Eleventh

relief

Finally,

a

state

invok[ing]

Federal

declaration of
Va.

at

may

Line

(E.D.
R.

Read,

322 U.S.

Here,

273

[or]

Plaintiff

Dist.

Gunter

Great

N.

clear

Amaram v.

LEXIS 101246,

v.

Life

the

not

argue

that

Atl.
Ins.

Defendants

state instrumentalities.'"

(quoting Doe,

by

(1906);

"a

jurisdiction."

(citing

(2004)).

"voluntar[ily]

making

2006 U.S.

2006)

does

Commonwealth's

abrogated

by

by

437

666

Coast
Co.

v.

(1944)) .

Plaintiff

F.3d at 248
the

U.S.

47

"'state agents

that

14,

or

state

Lee-Thomas,
431,

immunity

Federal

3:06-CV-444,

Sept.

200

own

jurisdiction"

No.

Va.

Co.,

its

submission to

State Univ.,

*2

waive

540 U.S.

473

Amendment

against

officials acting in violation of federal law.'"
F.3d at 249 (quoting Frew v. Hawkins,

Scanlon,

or

that

not

Lee-Thomas,

666

at 429).

Nor does he assert

Amendment

Eleventh

ADEA

acknowledges

519 U.S.

are

immunity

waived

"Kimel

by

has

Defendants.

bars

any

action

been

Indeed,

by

him

for

money damages or any kind of retrospective compensation against
the Commonwealth of Virginia."
17;
537

cf.

Rayqor v.

(2002)

validly
Kimel,

(noting

abrogate
528

Regents

U.S.

at

that

the

PL's Br.

of the Univ.
"Kimel

States'

91-92)).

held

of Minn.,
that

sovereign

Rather,
11

in Opp.

the

at 5,
534

U.S.

'ADEA

immunity'"

Plaintiff

ECF No.

asserts

533,

does

not

(quoting
that

he

requests

only

"prospective

injunctive

regarding his ADEA claim and seeks
Federal

Rule

Complaint
his

of

to

Civil

"insert

Procedure

the

individual capacity,

Opp.

the

at 4, 5-6,

Court

ECF No.

name
as

from considering

currently alleged,

declaratory

leave of Court,
15(a),

of

the

a proper

17.

and

to

pursuant

amend

University

relief"

his

to

Amended

President,

Defendant."

PL's

in

Br.

in

Because the Eleventh Amendment bars

Plaintiff's ADEA claims

as they are

Plaintiff's ADEA claims are DISMISSED WITHOUT

PREJUDICE.

2.

Leave of Court to Amend - Rule 15(a)

Under Rule 15(a)

of the Federal Rules of Civil Procedure,

a

party who has already amended his complaint "once as a matter of
course" must obtain "the opposing party's written consent or the
court's

leave"

Civ.

15(a).

P.

in

order to amend the

again.

Fed.

R.

"The court should freely give leave when justice

so requires," id.,
on

complaint

and should not "avoid decisions on the merits

the basis of mere technicalities of pleading," Burns v. AAF-

McQuay,

F.3d

Inc.,

292

(4th

980 F.

Supp.

Cir.

175,

1999).

177

(W.D.

be

sure,

To

Va.

1997),

"outright

aff'd,

refusal

166

to

grant the leave without any justifying reason appearing for the
denial

is not an exercise of discretion;

it

is merely abuse of

that discretion and inconsistent with the spirit of the
Rules."

amend

Foman v.

may

be

Davis,

denied

371

"if

U.S.

the

178,

court
12

182

(1962).

finds

'any

Federal

A motion to

apparent

or

declared
motive

reason

on

such

part

the

-

of

opposing

party

futility

of

(quoting

Foman,

First Com.

by

the

alone

amend."

Edwards

Cir.

1999)

the

is

at

F.2d

v.

Burns,

1986)).

182;

of

497

"Rather,

amend

his

argue

Amended

Defendants'

that

F.

Supp.

[or]

at

Serv.,

177

Inc.

1987)).

to

the

v.

However,

deny

leave

to

178

F.3d

231,

242

(4th

Co.,

785

F.2d

503,

the delay must be accompanied by
Id.

Plaintiff

Complaint

to

Foods

Oroweat

prejudice, bad faith, or futility."
Defendants

reason

dilatory

amendment,

Elecs.

(4th Cir.

or

prejudice

of

980

Ward

Goldsboro,

v.

faith

. . . undue

insufficient

City

bad

allowance

496,

(citing Johnson

509 (4th Cir.

of

U.S.

an

delay,

movant

amendment.'"

819

"[d]elay

undue

virtue

371

Bank,

as

"to

should

add

not

a

defendant"

new

be

allowed

to

because

sovereign immunity as an agency of the Commonwealth

of Virginia "has been settled law for more than a dozen years,"

long before Plaintiff filed his lawsuit,
Defs.'

Br.

at

5,

ECF No.

19.

However,

"about six months ago."
Defendants do not assert

any prejudice or bad faith regarding Plaintiff's delay in naming
the

proper

defendant

Plaintiff's ADEA claim,
would not

of

"prejudice,

F.3d

242

(citation

for

leave

request

his

Amended

to

Complaint,

or

that

if brought against the proper defendant,

survive a motion to dismiss.

evidence
at

in

bad

faith,

omitted),

amend

his
13

or

the

Accordingly,
futility,"
Court

Amended

GRANTS

finding no

Edwards,

178

Plaintiff's

Complaint

for

the

"purpose of inserting the President of Norfolk State University,
in his

individual capacity,

at 8, ECF No.

as

a Defendant,"

PL's

Br.

in Opp.

that

"statistical

17.
B.

Plaintiff's

Amended

EPA Claim

Complaint

alleges

analyses" of "sample data from departments within the University

community"

show

against men,
and

that

"impermissibly

and in favor of women,

responsibilities,

violation of

Defendants

the EPA.

and

skill

Plaintiff's

salary

Compl.

Defendants argue that Plaintiff's
because

of comparable qualifications
in

PL's Am.

discriminat[ed]

assignments,"

SIS! 10,

14,

ECF No.

in
12.

EPA claim should be dismissed

"salary study -

the

core

factual

assertion

of sexual inequity in pay - does not provide facts sufficient to
support a prima facie violation of the EPA."
ECF No.

14.

Amended

Complaint

'equal

skill,

work

Specifically,

on

effort,

fails

jobs

Defendants

to

the

compare

contend that
"male

performance

and responsibility,

similar working conditions.'"

Defs.'

of

and

which

Br. at 14,
Plaintiffs

females

doing

requires

equal

and which are performed under

Def.'s Reply Br. at 5,

ECF No. 19

(quoting 29 U.S.C. § 206(d)(1)).
To

establish

under the EPA,

has

paid

a

prima

facie

a plaintiff must

different

wages

to

case

show:

employees

of

wage

discrimination

"(1)

that

[his]

of

opposite

sexes;

that said employees hold jobs that require equal skill,
14

employer

(2)

effort,

and responsibility;

and

(3)

that

similar working conditions."
F.3d

598,

Brennan,

613

(4th

417 U.S.

titles,

however,

performance

are

Corp.,

188,

jobs

1999)

(citing

controlling."
288

performed under

Corning

195 (1974)).

282,

are

Brinkley v. Harbour Rec.

"Job

are not decisive.

F.2d

503

Cir.

such

Actual

Brennan

(4th

Cir.

v.

Club,

Glass

required

[substantially]

equal

employee."
Cir.

to

Wheatley v.

2004)

in
those

Prince

a

Wicomico Cnty.,

(citing Corning Glass Works,

and

William Hosp.

Therefore,

job

of

v.

job requirements and

1974).

[his]

Works

descriptions

burden falls on the plaintiff to show that the skill,

responsibility

180

"the

effort and

performance

higher-paid

390

[fe]male

F.3d 328,

417 U.S.

are

332

(4th

at 195).

1. Wage Difference between Sexes
Plaintiff's

"male

Associate

Norfolk

State

Plaintiff

woefully

Amended

Professor

in

University."

alleges

that

inadequate,"

faculty."

Complaint

Id.

PL's

he

SI 11.

Although

specifics

regarding

finds

that,

least

at

the
this

that

Department
Am.

to

Mathematics

that

"his

salary

was

the

salaries

differences

613.

15

at
12.

of

in

of

"female

Amended

Complaint

salary,

the

litigation,

[his]

Court

Plaintiffs

employer has

paid different wages to employees of opposite sexes."
F.3d at

a

ECF No.

Amended Complaint sufficiently alleges "that

180

is

SI 1,

Plaintiff's

stage

of

Plaintiff

Compl.

discovered

compared

lacks

at

the

asserts

Brinkley,

2. Equal Skill, Effort, and Responsibility under Similar Working
Conditions

Plaintiff alleges
least

"the

as

qualified"

as

responsibilities

PL's

Am.

Compl.

in his Amended Complaint
higher-paid

of

SI 11,

the

"female

job were

ECF No.

12.

that "he was at

faculty"

essentially
He

further

and

that

equivalent."
contends

that

Defendants were "in violation of the Equal Pay Act" because they
were "impermissibly discriminating against men,
women,

of

comparable

skill."

Id.

SI 14.

qualifications
However,

and

and in

favor of

responsibilities,

Plaintiff

asserts

no

and

facts

in

support of his allegations and his "formulaic recitation of the
elements

of a

at

Although

555.

qualified"
and

that

as

Univ.,

(E.D.

female

SI

7,

he

No.

Va.

respective

a

greater

3:12cv00826,

Feb.

7,

skills,

Id.

Indeed,

"an

bare

allegation'

2013).

that

was

the

higher

of

the
no

[fe]male

salary,"

Pay

[he]

job[s]

reference

U.S.

and

[faculty]

Dist.

no

LEXIS

plaintiff

receiving

16

as

salaries,

who

'Associate
[Plaintiff]

v.

Va.

16875,

comparisons

lower

least

the skills,

an

can

'cannot

U.S.

essentially

to

as

responsibilities

Act

is

[him]

550

at

were

Noel-Batiste

"Therefore,

effort,
Equal

"he

required of

2013

Twombly,

that

"has made

or to those of the

receive

do."

earning

faculty

responsibilities

id.

not

asserts

and responsibilities

Professor'

alleges

Plaintiff

the

"the

equivalent,"
effort,

cause of action will

at

of
be

rest

pay

State

for

*17

their
made."
on

the

equal

work;

an

appropriate

(4th
167

to

[he] must also show that the comparison

Cir.

1995)

(4th Cir.

make

a

that

That,

on

and

fails

is

and

of

are

Accordingly,

55

is making is

F.3d

Md. , 778

case,

thus

actionable

"employees

and

Trs.,

instant

sufficiently

female

effort,

not

of
Univ.

v.

faculty]

950.

to

Bd.

Soble

"In the

[female

55 F.3d at

v.

comparison,

own,

higher-paid

skill,

1985)).

its

Complaint

Strag

(quoting

proper

[he]

Strag,

one."

[he]

did

more

different

the

under

salaries.

Pay Act."

Equal

allege

hold

any

jobs

and

facts

that

showing

require

"that

such

statistical

Amended

analyses"

of

University community"

pattern

or

violation

practice
of

Title

of

Title VII

equal

jobs

are

180

F.3d

Claim

Complaint
"sample
show

alleges

data

that

discrimination,

VII,

causing

"disadvantaged

in

faculty."
that

PL's Am.

Compl.

Plaintiff's

Plaintiff

of

alleges

Title
no

VII

"facts
17

"engag[ed]

on

within
in

race,"

faculty

of

a

in

equal

and job assignments" to be

salaries,
SIS! 10,

"inferential

departments

based

"[b]lack

and responsibilities,
terms

from

that

Defendants

qualifications,

because

that

Plaintiff's EPA claim is DISMISSED WITHOUT PREJUDICE.

Plaintiff's

argue

prove

because Plaintiffs Amended

responsibility"

C.

the

164,

failed

than

performed under similar working conditions," Brinkley,
at 613,

950

F.2d

[Plaintiff]

no

paid

943,

13,

as

compared

ECF No.

claim

12.

should

from which

white

Defendants

be

the

to

dismissed

Court

[can]

infer discriminatory motives in the pay variance described" and

because

Plaintiff

fails

to

allege

facts

showing

that

his

job

"was substantially similar to a higher paying job performed by a

. . . white professor."
To

establish

under Title VII,

a

Defs.' Br. at 10, 11, ECF No. 14.4

prima

facie

case

a plaintiff must show:

of a protected class," and

(2)

of
(1)

"that the

wage

discrimination

that he is "a member

job

[he] occupied was

similar to higher paying jobs occupied by [employees outside the
protected

336,

class]."

343 (4th Cir.

observed,

Brinkley-Obu

1994).5

"statistics

v.

Hughes

However,

cannot

alone

(4th Cir.

prove

aff'd en

banc,

F.3d

835

the

existence

of

a

or even establish a prima

Warren v. Halstead Indus.,

1986),

36

as the Fourth Circuit has

pattern or practice of discrimination,
facie case."

Training,

Inc.,

F.2d

535

802 F.2d 746,
(4th

Cir.

753

1988).

Although a plaintiff is not required as a matter of law to point
to

a

similarly

situated

discrimination

claim,

333

545

F.3d

sufficient

treatment

536,

facts

from

Bryant

(4th

Cir.

comparator
v.

2003),

establishing

similarly

Aiken

that

situated

protected class," Coleman v. Md.

to

Reg'1

his

succeed
Med.

Inc.,

must

allege

received

employees

Court of Appeals,

a

Ctrs.,

complaint

he

on

"different

outside

the

626 F.3d 187,

* Plaintiff's Amended Complaint alleges only race discrimination
under Title VII.

5 The parties do not dispute that Plaintiff is "a member of a
protected class."

Brinkley-Obu,

36 F.3d at 343.
18

190 (4th Cir. 2010)

(citing White v.

BFI Waste Servs.,

LLC, 375

F.3d 288, 295 (4th Cir. 2004)).
Plaintiff

the

describes

Department

of

Mathematics

PL's Am. Compl. SI 1,
white

himself

as

at

ECF No. 12,

faculty simply as

Norfolk

a

from

an

employee

a

comparator is

indeed similarly situated.'"

178817,

387

*9

F.

facts

(E.D.

App'x

LLC,

Va.

355,

"'dealt

with

standards

the

[or]

Dec.

359

establishing

No.

2013)

(4th Cir.

that
same

case depends

I:13cvl207,

19,

he

and

or

the

mitigating

it.'"

Thus,

Lawrence,

although

2013

Plaintiff

job

recitation

assignments,"

higher-paid
[were]

of

the

elements

Twombly, 550 U.S. at 555.

of

Am.
a

the

Global

Dist.

LEXIS

Locke,

subject

white
to

faculty
the

same

same conduct without such

Dist.

contends

PL's

U.S.

circumstances

U.S.

class,'"

Plaintiff asserts no

LEXIS

that

Compl.

cause

of

that

would

treatment of them
178817,

"[b]lack

"white faculty" had "equal qualifications,
and

'completely upon

Lawrence v.

distinguish their conduct or the employer's
for

However,

upon whether that

2013

2010)).

supervisor,

SI 2.

(quoting Haywood v.

. . . engaged in the

differentiating

in

University,"

non-protected

[his]

Solutions,

facie

id.

allegations

"'validity of

Linguist

prima

Professor

State

"teaching faculty,"
[his]

to

"Associate

and refers to the higher-paid

because Plaintiff "has based
comparison

an

at

faculty"

*10.

and

and responsibilities,
SI 13,
action

a

"formulaic

will

not

do."

Accordingly, because Plaintiff "fails
19

to

establish

[the

a

plausible

higher-paid

basis

white

situated," Coleman,

for

believing

faculty]

were

626 F.3d at 191,

[Plaintiff]

actually

and

similarly

Plaintiff's Title VII claim

is DISMISSED WITHOUT PREJUDICE.
D.

Plaintiff's
to

Retaliation Claim

Amended Complaint

Defendants'

"uneven

alleges

treatment

of

that

[the]

his

resistance

faculty"

and

"his

having filed charges of discrimination with the Equal Employment
Opportunities Commission

. . . triggered a wave of retaliatory

acts that created a hostile and intimidating environment within
which he was forced to operate."

12.

of

insecurity

belittlement"
conditions

was

of

retaliation

exhaust

Plaintiff's
adverse

his

should

participation

in

job,

be

severe

SI 20,

ECF No.

occurred

20

that

to

and,
allege

because

Defs.'

any
of

Br.

the

working

Plaintiff's

Plaintiff

in

[and]

alter

abusive

because

"protected activity."

14.

to

an

argue

remedies

fails

ridicule,

as

creating

dismissed

Complaint
that

public

Defendants

administrative

Amended

action"

his

employment,

Id.

claim

in

"sufficiently

his

environment."

No.

Compl.

Plaintiff further contends that his "public embarrassment,

feelings

to

PL's Am.

any

failed

event,

"materially
Plaintiff's

at

12,

ECF

1.

Exhaustion of Administrative Remedies

Plaintiff filed a Charge of Discrimination with the EEOC on

December 8, 2011, "alleging discrimination on the basis of race,
gender,

and age."

PL's Am.

"particulars" section of
that "[o]n or

tenured

instructors

presented
University,

and

to

2008

was

assistant

the

and

4,

[he]

member

the

SI 11,

ECF No.

Plaintiff's Charge,

about April

faculty

Compl.

Board

. . .

paid

of

Provost

the

than

These

the

newly

hired

findings

President

University.

a

were

of

the

No

corrective

Defs.' Ex. 1, ECF No. 14-1.6

action has been taken."

of

learned that as

less

Visitors,

In the

Plaintiff reported

[he]

professors.

12.

Plaintiff

also alleged in his EEOC Charge his belief that "on the basis of
sex

(male)

and

age

I

continue

younger and female employees."

Generally,
administrative
U.S.C.

§

a

Title

remedies

remedies

VII

A

.

.

be

paid

unequal

wages

than

exhaust

all

charge.

42

Id.

plaintiff

through

2000e-5(f) (1) .

administrative

to

an

must

initial

plaintiff's

. deprives

EEOC

failure

the

"to

federal

exhaust

courts

of

6 Plaintiff's EEOC Charge of Discrimination was attached to
Defendants' brief in support of their Motion to Dismiss.
"Although as
a general rule extrinsic evidence should not be considered at the
12(b)(6) stage, [the Fourth Circuit has] held that when a defendant
attaches a document to its motion to dismiss,

'a court may consider it

in determining whether to dismiss the complaint [if] it was integral
to and explicitly relied on in the complaint and [if] the plaintiffs
do not challenge its authenticity.'"
Am. Chiropractic v. Trigon
Healthcare, 367 F.3d 212, 234 (4th Cir. Va. 2004) (quoting Phillips v.
LCI Int'l Inc.,

190 F.3d 609, 618

(4th Cir.

21

1999)).

subject matter
Grp.,

Ltd.,

Circuit

551

F.3d

has held

claim for the

is

jurisdiction over

"for

first

filing

584, 590

that

the

(4th Cir.

judicial complaint
and can be

the

F.3d 234, 247-48

the general
occurred

Wright v.

raise

related

follow from a

plaintiff may

the

v.

2009).

[a]

v.

Calvert

The

Fourth

retaliation

when the

Nealon

retaliation

Stone,

to

advance

Miles v.

Dell,

such

Inc.,

First

2000)).

[his]

reasonable

958

plaintiff

filed

Carfax, Inc.,

administrative

claims

in

[his]

this

Bank,

202

exception to

alleged retaliation
an

administrative

120 Fair Empl. Prac.

1723, 2013 U.S. Dist. LEXIS 170419,

[his]

EEOC charge

Union Nat'l

"the

F.2d

429 F.3d 480, 491

However,

rule does not apply when

complaint."
(BNA)

reasonably

(4th Cir.

before

Jones

"[I]f a plaintiff's claims in

(quoting Smith v.

2005)

Cir.

court"

charge."

1992).

subsequent civil suit."
(4th Cir.

(4th

in federal

first

are

300

claim."

"a plaintiff may

time

expected to

investigation,

297,

the

at *13

Cas.

(E.D. Va. Dec.

3, 2013).

Most

of

the

"retaliatory

acts"

Amended Complaint occurred before
Compl.

SI 20.

Plaintiff asserts

alleged

December 8,
that during

in

2011.

2011,

Plaintiff's

"reports

to

the

Board

omitted . . . from the BOV meeting handbook."

26,

2010,

the

University

demanded
22

"copies

PL's Am.

"all of 2011," he

was denied "the right to present an oral report."
of

Plaintiff's

of

Id.

Visitors

Id.

of

In March
were

On October

[Plaintiffs]

emails pertaining to the most recent presidential search."

Id.

In the Fall of 2011, the University disposed of certain property
and

blamed

refused

Plaintiff.

"to meet

communications."
2011," the

Id.

with

On

September

[Plaintiff] , or

Id.

From

even

"January,

contract."

Id.

occurring after December 8,

In

2011

fact,

are

2011,

to

2010

Board attempted "to induce the

[Plaintiffs]

6,

Defendants

respond

through

Provost

to

to

his

February,
terminate

the only acts allegedly

the

denial

of Plaintiff's

"most recent request for sabbatical leave,"7 the 2012 denial of
Plaintiff's "right to present an oral report
of

the

Board

of

Visitors,"

and

the

... at meetings

omission

of

Plaintiff's

"report [] to the Board of Visitors . . . from the BOV handbook"
in December 2011.

Id.

Plaintiff's EEOC complaint alleged only pay discrimination,

as evidenced by the boxes on the EEOC form marked "race," "sex,"

"age," and "other - Equal Pay," as well as Plaintiffs narrative
complaining of "unequal wages."

Defs.'

Ex.

1,

ECF No.

14-1.

Plaintiff did not check the "Retaliation" box on the EEOC form.

Id.

Nor did

Plaintiff

claim for retaliation

directly

describe

"raise

in his

taking

anything

charge to

any

actions

remotely
the

resembling

EEOC.

that

would

a

He did not

generally

7 Plaintiff's Amended Complaint does not specify the date of his

request for sabbatical leave.
Because the Court "must construe the
complaint in favor of the plaintiff," Warth, 422 U.S. at 501, the
Court deems this request to have occurred after his filing with the
EEOC.

23

provoke

retaliatory

action,

and he

'retaliate' or any of its forms."

170419,
124,

at *15.

132-33

Cf^ Bryant v.

(4th Cir. 2002}

does

not

Wright,

even

use

the

word

2013 U.S. Dist. LEXIS

Bell Atl.

Md.,

Inc.,

288 F.3d

(declining to consider plaintiff's

retaliation claim where plaintiff failed to complain to the EEOC
of retaliation and an "investigation of retaliation . . . could
not

reasonably

be

expected

to

occur

in

sole charge of race discrimination").
claim

made

reasonably

Wright,

in

[Plaintiff's

relate

to

2013 U.S.

the

Dist.

light

LEXIS

[plaintiff's]

Because "the retaliation

Amended]

claims

of

made

170419,

[C]omplaint

in

at

his

*17,

does

[EEOC]

not

charge,"

the Court

finds

that Plaintiff did not exhaust his administrative remedies as to

the "retaliatory acts" alleged in his Amended Complaint.
2.

"The
Title

VII

Prima Facie Case of Retaliation

elements
are:

of

(1)

a

prima

facie
in

adverse employment action;

and

a

protected

(3)

engagement

retaliation

claim

a causal link between the

activity;

protected activity and the employment

action."

F.3d at 190 (citing Mackey v.

360 F.3d 463,

Cir. 2004)).

Shalala,

under

Coleman,

(2)

626

469 (4th

Even if Plaintiff's retaliation claim was allowed

to proceed as to the acts occurring after the filing of his
charge with the EEOC,

Complaint

fails

to

Defendants argue that Plaintiff's Amended

allege

adversity" and "causation."

any

facts

establishing

"material

Defs.' Br. at 12, ECF No. 14.
24

a. Adverse Employment Action

Plaintiff

that

alleges seven "retaliatory acts" by

subjected

insecurity

in

him
his

to

job,

PL's Am. Compl. SI 20.
discriminatory
conditions,

act

or

Holland v.

"public
public
"An

Wash.

Homes,

ridicule,

adverse

that

benefits

embarrassment,

of

Inc.,

the
487

Cir.

"adverse

2004)).

A

employment

retaliation

challenged

if

action"

"a

action

hostile

prong

means it well might

have

Inc.,

action

of

the

adverse,

the

may

2007)

would

facie

in

the

case

for

found

have

which

375

satisfy

the

this

'dissuaded a reasonable

& Santa Fe Ry. Co. v. White,

terms,

368 F.3d 371,

prima

a

employment.'"

context

worker

making or supporting a charge of discrimination.'"
N.

is

(4th Cir.

environment

employee

materially

219

of

belittlement."

plaintiff's

F.3d 208,

work

reasonable

[and]

affect[s]

(quoting James v. Booz Allen & Hamilton,
(4th

feelings

employment

'adversely

Defendants

from

Burlington

548 U.S. 53, 68 (2006)

(quoting

Rochon v. Gonzales,

438 F.3d 1211, 1217-18 (D.C. Cir. 2006)); see

also Von Gunten v.

Maryland,

("Retaliatory
action."),
68.

harassment

can

F.3d 858,

constitute

To advance such a claim,

or

869

pervasive

employment and create

to

alter

that

employment

548 U.S. at 67-

the

was

"sufficiently
of

[his]

EEOC v.

Cent.

conditions

an abusive atmosphere."
25

2001)

a plaintiff must show that his

unwelcome conduct
as

(4th Cir.

adverse

overruled on other grounds by White,

employer engaged in
severe

243

Wholesalers,

employer's

Inc.,

action

573

is

F.3d

167,

175

not materially

(4th

adverse

Cir.

if

2009).

An

it amounts

to

"petty slights or minor annoyances that often take place at work
and that all employees experience."
Plaintiff's

"formulaic

[hostile work environment]

at

555,

and
to

- namely,

that

recitation

cause

the

conditions

SI 20, ECF No.

555.

of

his

548 U.S. at 68.

of

the

action,"

elements

Twombly,

subjected him to

that

was

of

550

a

U.S.

"a hostile

"sufficiently severe as

employment,"

PL's

12, - simply "will not do," Twombly,

Am.

Compl.

550 U.S.

at

Plaintiff presents no facts showing how any of Defendants'

actions "adversely affect[ed]

of

of

Defendants

intimidating environment"
alter

White,

[his]

employment."

the terms,

Holland,

Plaintiff allege that Defendants'

487

conditions,

F.3d

at

or benefits

219.

Nor

does

actions "dissuaded [him]

from

making or supporting a charge of discrimination."
U.S.

at

68. . Indeed,

as

discussed

above,

most

White,

of

54 8

Defendants'

alleged "retaliatory acts" occurred before Plaintiff made his
official

charge

Defendants'

of

actions

discrimination
were,

at

worst,

to

the

EEOC.

"normally

Because

petty

slights,

minor annoyances, and simple lack of good manners," White, 548
U.S.

at

68,

Plaintiff

fails

to

allege

that

he

suffered

"adverse employment action," Coleman, 626 F.3d at 190.

26

an

b. Causal Link between Protected Activity and Adverse Employment
Action

"An employee need not prove causation itself at the prima
facie case stage: rather, a close temporal relationship between
the protected activity and the adverse

show a causal nexus."
(4th Cir. 2007)
446

F.3d

541,

closeness

requisite

onerous

Inc.,

551

in

time

causal

446

(4th Cir.

Plaintiff

'far

from

of
F.3d

making
at
457

a

551

alleges

"While

certainly

prima

facie

(quoting

seven

evidence

EEOC - December 8, 2011.

or timeframes

or

for

as

to

establishes

satisfies

to

207

the

the

the

less

case

of

causality.'"

Williams

v.

Cerberonics,

1989)).

retaliatory

2010 and July

acts

3,

by

2012.

supplies only the date of his charge

inequities"

sufficient

217 F. App'x 201,

conclusively

it

(4th Cir.

occurring between January,

dates

2006)).

connection,

871 F.2d 452,

Complaint

Snow,

is

(citing Yashenko v. Harrah's NC Casino Co., LLC,

burden

Yashenko,

Brockman v.

action

Defendants,

His Amended

filed with the

Plaintiff fails to allege any specific

corresponding to his

"fight

against

his

vocal

and

"having

critic of the NSU administration."

been

a

salary

persistent

PL's Am. Compl. SI 20.8

In

8 Plaintiff asserts that "the EEOC filing was not the only
protected activity engaging [his] attention, active participation, and
commitment," but "was just one of the several and continuing acts
which triggered the Defendants' response."
PL's Br. in Opp. at 6-7,
ECF No. 17.
For purposes of this discussion, the Court assumes
without deciding that Plaintiff's "fight against salary inequities" or
"having been a vocal and persistent critic of the NSU administration"
27

light

of

the

Court's

determination

administrative

remedies

and material

regarding

exhaustion

adversity,

the Court

of
need

not examine each alleged retaliatory act to determine whether he
has

established

prima

facie

"closeness

case

Accordingly,

of

in

time"

causality."

because

sufficient

Yashenko,

Plaintiff

to

446

failed

"mak[e]

F.3d

to

at

event,

Defendants against him,

is DISMISSED WITHOUT

E.

As

more

amend

the

No.

his

determined

Court

And,

that

has

Amended

President

17.

Plaintiff's

retaliation claim

PREJUDICE.

the

individual capacity,

state,

in any

Leave to Amend to Cure Deficiencies

discussed,

inserting

ECF

his

fails to present any facts showing an adverse employment

action by

once

551.

exhaust

administrative remedies as to his retaliation claim and,

a

of

granted

Complaint

Norfolk

discussed

Plaintiff's

for

State

as a Defendant."
as

leave

Plaintiff

to

"purpose

of

the

University,

PL's Br.

at

Amended

to

length,

in Opp.
the

Complaint,

in

in

his

at 8,

Court

its

has

current

is insufficient to support any of his discrimination and

retaliation claims.

Plaintiff

amend

his

Defendant

has

Complaint
or

this

not

expressly

regarding
Court.

requested

any

However,

leave

deficiencies
because

it

to

further

identified
is

at

by

least

qualifies as a "protected activity" for purposes of his retaliation
claim.

Id.

28

conceivable

support

that

his

Plaintiff

could

discrimination

GRANTS

Plaintiff

Opinion

and

fourteen

Order,

if

he

and

set

sufficient

retaliation

(14)

so

forth

days

desires,

claims,

from

to

the

file

facts

the

date

a

Court

of

Second

to

this

Amended

Complaint curing the deficiencies identified herein.
IV.

CONCLUSION

For the reasons stated above,
is

GRANTED.

Plaintiff

desired,

Plaintiff's

is

a

ORDERED

Second

to

claims

file

Amended

Defendants'

are

DISMISSED

within

Complaint

Motion
WITHOUT

fourteen

curing

(14)

the

to

Dismiss

PREJUDICE.

days,

if

deficiencies

identified in this Opinion and Order.
IT

IS

SO

ORDERED.

/s/
Mark
UNITED

Norfolk,

Virginia

February \3> , 2014

29

STATES

S.

Davis

DISTRICT

JUDGE