Dr. Archie Earl v. Norfolk State University et al

Filing 33

OPINION AND ORDER that Defendants' Third 24 Motion to Dismiss is GRANTED, IN PART, and DENIED, IN PART; the Court DISMISSES Plaintiff's Title VII race discrimination and ADEA age discrimination claims for lack of subject matterjurisdictio n. The Court DISMISSES Plaintiff's Title VII sex discrimination claim because Plaintiff fails to state a claim upon which relief can be granted. The Court DISMISSES Plaintiff's retaliation claim for lack of subject matter jurisdiction with respect to the allegedly retaliatory acts occurring before December 8, 2011, and DISMISSES Plaintiff's retaliation claim for failing to state a claim upon which relief can be granted as to the acts occurring after December 8, 2011. The Court DENIES Defendants' Third Motion to Dismiss with respect to Plaintiff's EPA disparate treatment claim. Signed by District Judge Mark S. Davis and filed on 6/26/2014. (rsim, )

UNITED

STATES

DISTRICT

COURT

FILED

EASTERN DISTRICT OF VIRGINIA

Norfolk

Division

JUN 2 6 2014
DR.

ARCHIE EARL,

CLLRK, U S. DISTRICT COURT
NORFOLK. VA

Plaintiff,
Civil

v.

No.:

2:13cvl48

NORFOLK STATE UNIVERSITY,
THE

BOARD

OF VISITORS

OF

NORFOLK STATE UNIVERSITY,

THE COMMONWEALTH OF VIRGINIA,
and DR. TONY ATWATER, FORMER
PRESIDENT

OF NORFOLK

UNIVERSITY,

STATE

INDIVIDUALLY,

Defendants.

OPINION

This

dismiss

filed by

Visitors

of

matter

of

to

before

and

State

Dr.

Federal

ORDER

the

Norfolk State

Norfolk

Virginia,

pursuant

is

AND

Court

University

University

Tony

Atwater

Rules

on

of

a

third

("NSU"),

("BOV"),

Civil

Procedure

to

the Board of

the

(collectively

motion

Commonwealth

"Defendants"),
12(b)(1)

and

12(b) (6).

After examining the briefs and the record,

the Court

determines

that

the

oral

argument

is

unnecessary

because

facts

and legal contentions are adequately presented and oral argument
would not aid in the decisional process.
E.D.

Va.

Defendants'

Loc.

R.

7(J).

For

the

motion is GRANTED IN PART,

Fed.

reasons

R. Civ.
set

P.

forth

and DENIED IN PART.

78(b);
below,

I.

FACTUAL AND PROCEDURAL HISTORY1
A. Background

Dr.
male

Archie

Earl

Associate

("Plaintiff")

Professor

Norfolk State University,

in

the

is

No.

23.2

Aside

"66

Department

year
of

old,

Black,

Mathematics

at

a "state supported" university located

in "the Commonwealth of Virginia."

ECF

a

from

his

PL's Second Am.

professorial

Compl.

duties

5 1,

at

NSU,

Plaintiff also serves as "Chair of the NSU Faculty Salary Issues

Research Committee"

to

Plaintiff's

study "gross

purpose

of

("the Committee").

Second Amended Complaint,

inequities

the

administration

Id.

in

its

study

findings,

in

2006,

according

the Committee began to

faculty salaries."

Committee's

of

In

was

to

order

Id.

f 10.

"advise

that

The

the

remedial

NSU
steps

1 The facts recited here are drawn from Plaintiff's Second
Amended 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
construes these facts

court accepts all well-pled facts as true and
in the light most favorable to the plaintiff in

weighing the legal sufficiency of the complaint.").

2 On February
"Amended Complaint."
with

the

first

27,

2014,

Plaintiff

See ECF Nos.

filing

states

that

22-23.
the

filed

two documents

titled

The description associated
Second

Amended

Complaint

is

"against Dr. Archie Earl," ECF No. 22, and the second filing is
"against All Defendants," ECF No. 23.
The documents themselves
appearing to be identical, the Court refers to the second filing
"against all Defendants" as Plaintiff's Second Amended Complaint.
ECF
No.

23.

could

be

taken

uncovered."
the

to

Id.

relevant

claims that

redress

such

inequities,

if

any,

as

may

be

Plaintiff alleges that the Committee requested

"data

from

the

NSU

Human

Resources

Office,"

but

"the data provided were filled with serious errors

that would have

led to unreliable results."

Id.

Plaintiff does

not describe the nature of the alleged errors found in the data.
The

"Committee

then

"only sample data"
Id.

1 11.

decided

modify

its

study"

from the Committee members'

According

"that it was

to

to

Plaintiff,

preparing its

own

NSU

study of

analyze

own departments.

advised

the

to

the

Committee

salary inequities

question, promising to reveal the results of this study so that
the

matter

may

dispatch."

"woefully
faculty,

"based

asserts

that

inadequate"
and

on

the

he

discovered

faculty,

Id.

of

and

with

1 12.

discriminating
faculty."

against

that

ongoing
his

own

analysis,"
salary

hires,

"recent

and

female

faculty,"

although

least as

qualified"

and that

job[s]

"[U]sing

were

inferential

and

was

to

the

analyses" of the sample data,

(over 40)

amicably,

Committee's

that "he was at

responsibilities

equivalent."

was

reasonably,

compared

younger

Plaintiff alleges

"the

resolved

Id.

Meanwhile,
Plaintiff

be

white

essentially
statistical

the Committee determined that NSU

"[b]lack faculty,"

Id. 5f 14-16.

However,

"men,"

and

"aged

Plaintiff does not

provide the results of the Committee's "inferential statistical

analyses" or otherwise describe the results of the study, except
with respect to his own salary.
On

"December

8,

Id.

2011,"

after

failed

"attempts

at

discussions with the administration," Plaintiff filed in his own

name

a

Charge

of

Discrimination

Opportunity Commission
on the basis of race,
Discrimination

as

his

between

("EEOC"),
gender,

April

1,

alleged
2008

Equal

Id.

In the Charge of

Plaintiff named "NORFOLK STATE"

the

December

discrimination
8,

2011,

and

appropriate box to indicate a "CONTINUING ACTION."

ECF No.
suffered,

14-1.3

As the types

Plaintiff

checked

the

checked

"OTHER"

the EEOC charge,

box.

occurred

checked

the

EEOC Charge,

of discrimination he allegedly

the boxes

and "OTHER," with the words

Employment

"alleging discrimination based

that

and

the

and age."

("EEOC charge"),

employer,

with

"Equal

Id.

In

for "RACE," "SEX,"

Pay" typed in
the

"AGE,"

a box next to

"Particulars"

section

of

Plaintiff stated the following:

I.
I
was
hired
on
or
Mathematics
Professor
in
Engineering and Technology.

about
August
1991
as
a
the
College
of
Science,

3 As noted in the Court's February 13,

2014 Opinion and Order,

Plaintiff's EEOC charge, attached to Defendants' Second Motion to
Dismiss, see ECF No. 14-1, may be considered by the Court on a Motion
to Dismiss because the EEOC charge "'was integral to and explicitly
relied on in the complaint and [because] the plaintiff!] do[es] not
challenge its authenticity,'" Am. Chiropractic v. Triqon Healthcare,
367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int'1 Inc.,
190

F.3d

609,

618

(4th

Cir.

1999));

see

also

Johnson

v.

Portfolio

Recovery Assocs., LLC,
682 F. Supp.
2d 560, 570 (E.D. Va. 2009)
(considering EEOC charge attached to Defendant's brief supporting
motion to dismiss "for the purposes of determining the scope of such
charge").
4

II. On or about April 4, 2008 as a result of a study
completed by the Faculty Senate Salary Issues Research
Committee I learned that as a tenured faculty member I

was paid
less
than
assistant professors.
to

the

Board

of

newly
These

hired
instructors and
findings were presented

Visitors,

the

President

and the Provost of the
action
has
been
taken
inequity in salary.

III.

I

believe

that

on

the

basis

the

University.
regarding

University,
corrective

of

No
this

of

sex

(male)

and

age I continue to be paid unequal wages than younger
and female employees of the University in violation of
Title VII of the Civil Rights Act of 1964, as amended,
the Equal Pay Act of 1963, as amended and the Age
Discrimination in Employment Act of 1967, as amended
and the Virginia Human Rights Act, VA Code, 2.2-3900,
et seq.

Id.

Plaintiff

asserts

"EEOC ended its

that,

on

December

B.

PL's Second Am.

Plaintiff's Causes

Fed.

"Counts" against
of

Action,"

numbered

Cause

claims.

the

just

cites
fails

alleged

However,

the
to

is

hardly

as

every
though

Compl.

at

statute

the

theories

because

the

Court

alleges

no

they were
10,

"Causes

paragraph
fully

ECF No.

23.

the

"view[]

set
Each

violated

supporting

must

of

preceding

identify

or

model

four

allegedly

clearly

a

Plaintiff

instead presents
and

23.

of Action

10(b).

but

PL's Second Am.

but

discrimination

P.

"each

inclusive,

Action

Defendants,

Civ.

Defendants,

above,

of

R.

incorporating

forth herein."

after

Compl. 1 12, ECF No.

Plaintiff s Second Amended Complaint

See

2012,

investigation," the EEOC "issued a right-to-sue

letter to Plaintiff."

clarity.

21,

type

by
of

Plaintiff's
even

poorly

drafted complaints in a light most favorable to the plaintiff,"
Mylan Labs.,

Inc. v.

Matkari,

7 F.3d

1130,

1134 n.4

(4th Cir.

1993),

the Court liberally construes Plaintiff's four Causes of

Action

and

attempts

to

present

the

pertinent

throughout his Second Amended Complaint,

facts,

scattered

to support each Cause

of Action.

1.

First,

Title VII Race Discrimination

Plaintiff's

Second

Amended

Complaint

alleges

wage

discrimination by Defendants on the basis of race, in violation
of

"Title

Compl.

SI

VII,

18,

42

U.S.C.

ECF No.

§

23.

2000

et

seq."

Plaintiff brings

discrimination claim as a class action,
of Civil Procedure 23,

at

Norfolk

State,"

alleges that

id.

id.

PL's

his Title VII

18.

Plaintiff's

Cause

faculty."

and

that,

salaries

requiring equal

responsibility by otherwise comparable Black

14

of

"using

Plaintiff's
inferential

Second

Amended

statistical

that

discrimination,
remuneration,

"NSU

was

based
in

engaging

on

violation

race,
of

in
in

a

pattern
its

Title

Complaint

analyses"

sample data obtained from the Committee's members,
determined

Action

Id.

Paragraph
asserts

of

Defendants advanced a "policy of unequal

effort,

race

"all Black Faculty

for essentially the same work as White faculty,
skill,

Am.

pursuant to Federal Rule

SI 8, on behalf of

SI

Second

the

the Committee
or

policy
VII."

on

practice
of
Id.

of

faculty
SI

14.

Specifically,

Plaintiff

qualifications,
much

and

that "[b]lack faculty of equal

responsibilities,

disadvantaged

faculty."

alleges

in

Id.

terms

The

of

only

and

job

salaries,

"[b]lack

as

assignments
compared

faculty"

to

white

mentioned

Plaintiff's Second Amended Complaint is Plaintiff himself.

In

support

of

his

Title

VII

race

discrimination

Plaintiff identifies two white comparators,

"Wl and W2

were

in

Id.

claim,

whom he refers to as

(to keep their identities private)."

Id.

Plaintiff

alleges that Wl and W2 are "both on the same nine month contract
as

Plaintiff,"

and

"work

under

Plaintiff]," but asserts that Wl
semester
Id.

. . . while

Plaintiff

professor,
and

same

that

asserts

"with
W2

is

number

of

Plaintiff

far
a

that

less

and W2
teaches
Wl

is

teaching

tenured

years

the

as

supervisor

[as

teach only "9 hours per
12

hours

an

per

semester."

untenured

experience

associate

teaching

same

than

professor

assistant

Plaintiff,"

"with

Plaintiff."

Id.

about

the

Plaintiff

alleges that Wl "earned $58,000 and W2 earned $68,505," and "yet
Plaintiff earned $57,605."

Id.

2. Equal Pay Act/Title VII Sex Discrimination
Next,

Plaintiff's

discrimination

"Equal

Pay Act,

brings his
U.S.C.

by

§

Second

Defendants

29

U.S.C.

EPA claim "as

216(b)

(the

Amended

based on

§

206(d)."

Complaint

sex,

in

Id^

alleges

violation of

SI

19.

wage

the

Plaintiff

a collective action," "pursuant to 29

Fair Labor Standards Act

collective action

provision," id. SI 8, on behalf of "all male faculty at NSU who
chose

[sic]

"inequity

to

of

opt

pay

in,"

as

id_;_

SI

between

19.

Plaintiff

female

faculty

alleges

and

an

similarly

qualified male faculty at NSU, for equal work on jobs requiring
equal skill, effort and responsibility."
Paragraph

15

of

Plaintiff's

Second

asserts that the Committee concluded,

analyses,

. . .

that

NSU

was

Id.
Amended

Complaint

"after similar statistical

impermissibly

discriminating

against men, and in favor of women, of comparable qualifications
and responsibilities,

and skill in salary assignments,

this in violation of the Equal Pay Act."

Id. SI 15.

and all
Plaintiff

is the only affected male faculty member mentioned in his Second
Amended Complaint.

In

support

of

his

EPA

claim,

Plaintiff

identifies

two

female comparators, whom he refers to as "Fl, and F2 {to protect

their privacy)."

Id.

Plaintiff asserts that Fl and F2 "teach

in the same department as Plaintiff, and they all teach the same
courses,

or,

at

Plaintiff

asserts

worst,

that

courses

they

"work

and work under nine month contracts,

nine hours per semester,
load."

Id.

According

that

are

fungible."

under

the

same

chairperson,

even though Fl and F2 teach

while Plaintiff carries
to

Id.

Plaintiff,

Fl

is

a twelve hour
an

untenured

assistant professor with "very little teaching experience," and
F2 is an untenured associate professor with "experience nearly

as much as Plaintiff's."
$62,000,

Id^

Plaintiff alleges that "Fl earns

and F2 earns $61,852,

while Plaintiff earns $57,605."

Id.

Plaintiff's second Cause of Action asserts that the alleged

"violations

of

the

Equal

violations of Title VII."
VII

sex

discrimination

Pay

Act

are

Id. SI 19.

claim

as

also,

ipso

facto,

Plaintiff brings his Title

a

class

Federal Rule of Civil Procedure 23.

Id.

action,

SI 8.

pursuant

to

Plaintiff asserts

no additional facts specific to his Title VII sex discrimination
claim.

3. ADEA Age Discrimination
Plaintiff's

third

Cause

of

Action

in

the

Second

Amended

Complaint alleges wage discrimination by Defendants on the basis
of age,

in violation of the "Age Discrimination

Act,

29 U.S.C. § 621 et seq."

Id_;_ SI 20.

ADEA

age

"as

pursuant

discrimination
to 29 U.S.C.

claim

§ 216(b)

collective action provision."
discrimination

claim

upon

a

in Employment

Plaintiff brings his

collective

action,

. . .

(the Fair Labor Standards Act

Id. f 8.

allegedly

Plaintiff bases his age
"discriminatory

practices

and policies at NSU, continued wherein older faculty are treated
unequally in terms of salaries,
Post Tenure Review policy,
SI

20.

Plaintiff's

Second

and also in respect of the new

enforced by Pres. Tony Atwater."
Amended

Complaint

"older faculty" besides Plaintiff himself.

Id.

mentions

no

Id.
other

Paragraph
asserts

that,

data,"

the

16

of

Plaintiff's

"relying

Committee

on

statistical

determined

against its aged (over 40)
16.

of

Second

whom

Plaintiff

Plaintiff alleges
"have
Id.

minimal

"that

of

NSU

discriminating

He

asserts

same conditions
load each

that
in

refers

to

as

"PI,

P2,

experience,
the

as

younger

compared

comparators

to

Plaintiff's

P3

$57,605."

Id.

to

Plaintiff."

"work

under

the

nine hour

hour

load."

P2 earns $58,000,

course,

Plaintiff

earns

also describes

"NSU's

Id.

Plaintiff's

new

of

SI

untenured and

twelve

and

while,

Id.

P3."

teaching "a

Plaintiff alleges that "PI earns $62,000,
$63,000,

and

compared

Id.

earns

sample

all "under 40 years

three comparators are

the same department,"

semester,

was

the

faculty in terms of salary."

that all

teaching

Complaint

analyses

Plaintiff identifies three comparators,

age,"

Amended

policy

of

Second Amended Complaint

post

tenure

review

(PTR),"

which

"contains

a

provision requiring faculty who were tenured for twenty or more
years

at

NSU

to

be

subjected

enactment of the policy."

tenured

faculty

have

a

to

Id.

longer

does

a discriminatory impact

not

further

explain

on

three

years

after

the

Plaintiff asserts that "[o]ther

time

policy to their first PTR," and
has

PTR

from

the

concludes that

enactment

10

the

PTR

the

the PTR "policy

older faculty."

either

of

process

Id.

or

Plaintiff

how

being

subjected

to PTR earlier

than

other

tenured

faculty

has

an

adverse discriminatory effect on older faculty.

Plaintiff brings his ADEA age discrimination claim "solely

against Dr. Tony Atwater,

in his individual capacity,

was he who enforced the policy,
discuss reform."

Defendants,
Title

final

ADEA,

retaliated

refused to

on

and

against

Retaliation

Cause

"grounded

VII,

he who

Id.
4.

Plaintiff's

and it was

since it

of

asserts

[Defendants']

EPA."

him

Action

having

claims

led

in

by

violations

alleged

Plaintiff

"for

retaliation

of

that

the

Defendants

fight

against

salary inequities, for having been a vocal and persistent critic
of

the

NSU

administration

faculty,"

and "for

with

[EEOC]."

the

"decision to

of

intimidating

acts

2006

SI

its

uneven

21.

that

treatment

charges

filed

of discrimination

Plaintiff

EEOC complaint

environment

from

having

Id.

file an

retaliatory

operate

his

for

which

forward."

Id.

alleges

that

he

this
was

hostile

being

Specifically,

forced

2008,

most

recent

request

was denied by NSU;

for

sabbatical

with excuse that

not be spared;'"

11

his

and
to

Plaintiff

alleges the following "retaliatory acts" by Defendants:
a) "his

its

. . . triggered a new wave

perpetuated

within

of

leave,

in

*he could

b) "he was denied

(all of 2011,

and 2012)

the right to

present an oral report, as Faculty Senate president,
at meetings of the Board of Visitors;"
c) "his reports to the Board of Visitors were omitted,
without

explanation,

(March,

December,

2011}

from

the BOV meeting handbook;"

d) NSU,

"through

(10/26/2010)

pertaining
even

the

University

copies

to

though

of

demanded

all

[Plaintiff's]

emails

recent

the most

Faculty

Counsel,

presidential

search,

were

excluded

from

the

search

process;"

e) NSU "disposed
furniture,
financial
without

(Fall,

[office
records,

proper

2011)

of Faculty Senate office

equipment] ,
check

books,

authorization

office

supplies,

grievance

. . . and

records,

then

blamed

[Plaintiff];"

f) "the president of

[NSU],

Dr. Atwater,

as well as the

University Director of Human Resources and the
refused,

on

several occasions

to meet with

[Plaintiff]

or

(9/6/2011,

even to

[BOV]

7/3/2012),

respond to his

communications;"

g) "the

Board

February,

attempted

2011)

[Plaintiff's]

to

(January,

induce the

contract

with
12

2010

Provost

[NSU],

to

through
terminate

notwithstanding

that

this

would

violative of his

have

been

without

cause,

and

tenure status."

Id.

Plaintiff alleges that Defendants'
of

subjecting

humiliation,
[and]

the

Plaintiff

public

embarrassment

feelings of insecurity in his job,

belittlement."

Defendants'

Id.

Furthermore,

retaliatory

environment

that

intimidation,

and

uncomfortable

acts

was

the

and

forced

hostile

insult

significantly alter
an

to

"actions had the effect

that

and
was

conditions

threatening

Plaintiff also asserts that,

public ridicule,

Plaintiff

him

"to

contends that

operate

filled

with

sufficiently

of

his

working

and

in

an

pervasive

severe

employment,

as

to

creating

environment."

Id.

when he was "snubbed by the Board,"

and "when a tenured faculty member . . . was summarily fired,

in

2012, the intimidation level rose, as the faculty morale sank."
Id.

C. Procedural History

Plaintiff
March

21,

filed

2013.

his

ECF

original

No.

1.

Complaint

Defendants

in

filed

Dismiss Plaintiff's Complaint on July 22, 2013,

was

rendered moot when

August

Dismiss
lacked

12,

2013,

ECF

Plaintiff's
subject

a

Court

on

Motion

to

ECF No.

4, which

Plaintiff filed an Amended Complaint on
No.

Amended

matter

this

12.

Defendants

Complaint,

jurisdiction
13

over

filed

arguing

a

that

Plaintiff's

Motion

to

the

Court

ADEA

claim

and that his Title VII

and EPA claims "fail[ed]

of action for which relief may be granted."
Upon
Court

review

of

identified

Defendants'

numerous

Second

to state a cause

ECF No. 13.

Motion

deficiencies

in

to

Dismiss,

Plaintiff's

the

Amended

Complaint and dismissed the Amended Complaint without prejudice.
Recognizing
could

and

set

that

forth

retaliation

file

was

"at

sufficient

claims,"

Second

least

facts

the

to

Court

support

granted

his

Plaintiff

discrimination

Plaintiff

"to

Second Motion

No.

2:13cvl48,

Feb.

2014

13, 2014).

February 27,

2014,

at

U.S.

28-29;

Dist.

Earl

LEXIS

v.

Norfolk State Univ.,

18583,

at

*33

(E.D.

Va.

Plaintiff filed his Second Amended Complaint on

2014.

Defendants

21

curing

leave

identified" upon the Court's review of Defendants'
ECF No.

Complaint

that

deficiencies

Dismiss.

Amended

conceivable

the

to

a

it

ECF No.

filed

a

23.

Third

Motion

to

Dismiss

on

March

7,

arguing that the Court continues to lack jurisdiction over

Plaintiff's ADEA claim and alleging that Plaintiff has failed to
cure

the

Complaint.

2-6.

See Defs.'

noted

Br.

by

Supp.

the

Mot.

Court

in

to Dismiss,

his

Amended

ECF No.

25 at

Plaintiff responded with a four-page brief in opposition,

presenting
claims,

Br.

deficiencies

no

regarding

his

ADEA

and

and sparsely discussing his remaining claims.

in Opp'n,

amend

argument

his

ECF No.

28.

Second Amended

Plaintiff does
Complaint,
14

see

retaliation
See PL's

not request leave to

id.,

as

he

did

in

his

previous

responsive

brief

Dismiss,

see ECF No.

17 at

deny

Defendants'

Complaint,"

to

Br.

to

in

Second

8, but simply "urge[s]

Motion

PL's

Defendants'

Dismiss

Opp'n

at

3,

this
ECF

Motion

the Court to

Second

No.

to

28.

Amended

Defendants

filed a reply brief on March 24, 2014,

requesting that the Court

dismiss

and

Dr.

Atwater

retaliation

issues

in

claim

his

that

certification

Procedure

23"

"pertain[ing]
[Plaintiff's]

Defs.'

a

to

in

a

Plaintiff

brief,

has

class

and,

as

dismiss

failed

to

directed

failed

action

any

to

under

event,

larger

own

case

by

Mathematics

of

those

Court's

Defendants also
"move

Rule[]

failed

population

this

timely

Federal

has

Plaintiff's

address

Reply Br., ECF No. 29.

Plaintiff
as

the

because

responsive

Local Rule 7{F).
assert

from

of

Civil

plead

to

NSU

for

facts

faculty

Department."

Id.

than

at

1.

Accordingly, this matter is ripe for review.
II.

STANDARD OF REVIEW

Because this Court has an obligation to satisfy itself that it
has

subject matter

examines

the

consideration.

claims

due

to

jurisdiction over

standard
Next,

alleged

of

because

the

review

the

the

Court

applicable

Defendants

inadequacy,

case,

have

Court

moved

also

to
to

such
dismiss

examines

standard of review applicable to such a motion to dismiss.

15

first

the

A. Subject-Matter Jurisdiction - Rules 12(b)(1) and 12(h)(3)
Federal

district

jurisdiction.'"
U.S.
of

546,

Am. ,

552
511

Exxon

(2005)
U.S.

Corp.,

375,

Cotton,

U.S.

535

377

v.

of

Allapattah

(1994)).

limited

Servs.,

Consequently,

forfeited or waived.'"

500,

U.S.

Corp.

'courts

545

"'subject-

because it involves a court's power to hear

can never be

546

Mobil

"are

(quoting Kokkonen v. Guardian Life Ins. Co.

matter jurisdiction,
a case,

courts

625,

514

(2006)

630

Arbaugh v.

(quoting

(2002)).

To be

United

sure,

Y

States

"it

is

& H

v.

always

incumbent upon a federal court to evaluate its jurisdiction sua
sponte,
its

to ensure that

authority."

1988);
Mason

see

Davis

also

Univ.,

411

it does not
v.

Pak,

Constantine
F.3d

474,

856

v.

480

decide controversies beyond
F.2d

Rectors

648,

&

(4th Cir.

650

(4th

Visitors

Va.

2005)

of

Cir.

George

("A federal

court has an independent obligation to assess its subject-matter
jurisdiction,

and

jurisdiction

on

Ireland,

v.

702

Ltd.

(1982));

Empl.

Prac.

(E.D.

Va.

should,
"Indeed,

it

will

its

own

Jan.

examine

(BNA)
2,

motion.'"

its

v.

1773,

2013)

the absence

during the case,

a

lack

of

(quoting

subject-matter
Ins.

Compagnie des Bauxites de Guinee,

Vanderheyden

Cas.

'raise

Peninsula Airport

2013 U.S.

(observing

jurisdiction
of

Dist.

that

over

jurisdiction may be

456 U.S.

Comm'n,

LEXIS

"the

the

Corp.

suit

116

399,

Court
sua

raised at

at

can,

of
694,

Fair

*24
and

sponte") .
any time

and may be based on the court's review of the
16

evidence."

1999);

170,

Lovern

see

v.

Edwards,

also GO Computer,

175

n.2

(4th

Cir.

190

Inc.

F.3d

v.

2007)

648,

Microsoft

(observing

654

(4th

Cir.

508

F.3d

Corp.,

that

"questions

concerning subject-matter jurisdiction may be raised at any time
by either party or sua sponte by this court"
Moore,

129 F.3d 728,

731 n.6 (4th Cir.

(quoting Plyler v.

1997)).

A party may move to dismiss an action for lack of subject
matter jurisdiction,
12(b)(1).

subject

pursuant to Federal Rule of Civil Procedure

"Unlike a Rule 12(b)(1)

matter

jurisdiction,

a

motion addressing the lack of

Rule

12(h)(3)

motion

'may

be

asserted at any time and need not be responsive to any pleading

of the other party.'"
4:13cv26,

2013)

2013 U.S.

(quoting

1984)).

Brown v.

Dist.

Rubin

subject

LEXIS 146933,

v.

"Furthermore,

Huntington

Buckman,

when

matter

a

at

727

of

lack of

subject-matter jurisdiction on

*8

jurisdiction,

it

Corp.

of

Ireland v.

U.S.

694,

702

(1982)).

exists,

the

allegations

district

as

mere

Compaqnie des
"In

court

evidence

on

to

the

must

72

aware

Bauxites de

issue,

without

(quoting
456

jurisdiction

the

and

the

[such]

Guinee,

whether

regard

Cir.

of

'raise

Id. at **8-9

No.

July 25,

(3d

its own motion,'

determining

is

is

Inc.,

Va.

71,

court

regard to the positions of the parties."
Ins.

(E.D.

F.2d

district

absence

Ingalls,

pleadings'

may

consider

evidence outside the pleadings without converting the proceeding
to

one

for

summary

judgment."
17

Richmond,

Fredericksburg

&

Potomac

1991).

R.

Co.

v.

"[I]f

United

the

court

States,

945

determines

F.2d

765,

768

any

time

that

at

(4th

Cir.

it

lacks

subject-matter jurisdiction, the court must dismiss the action."
Fed.

R. Civ.

P. 12(h)(3).

B.

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

Federal

of

Rule

a complaint,

of

or

Civil

Procedure

a claim within

12(b)(6)

permits

a complaint,

dismissal

based

on

the

plaintiff's "failure to state a claim upon which relief can be

granted."

Fed.

R.

Civ.

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

which

requires

P.

12(b)(6).

A

motion

to dismiss

must be read in conjunction with Rule
"a

short

and

plain

statement

of

claim showing that the pleader is entitled to relief," Fed.
Civ.

P.

8(a)(2),

what the

Bell

defendant

R.

fair notice of

. . . claim is and the grounds upon which it rests,'"

Atl.

Conley

so as to "'give the

the

Corp.

v.

original).

v.

Gibson,

Twombly,
355

550

U.S.

U.S.
41,

544,
47

555

(2007)

(1957))

(quoting

(omission

in

The United States Supreme Court has interpreted the

pleading standard set forth in Rule 8(a)

as requiring that a

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

face"

and

thereby

"raise

a

right

to

relief

above

the

speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact)."
570

is

(internal citations

"not

akin

to

a

omitted).

The plausibility requirement

'probability requirement,'
18

Id. at 555,

but

it

asks

for

more

than

Ashcroft
550

a

v.

U.S.

sheer
Iqbal,

at

the

556

556).

plausibility
allows

possibility"
U.S.

In

when

the

court

to

that

662,

other

the

defendant

(2009)

words,

plaintiff
draw

678

a

(quoting

"[a]

pleads

claim

factual

reasonable

complaint

without

"'must accept

in the
of

Rule

as

resolving
true

complaint'

the

du

435,

and

all

440

Cnty.,

Pont

de

(4th

factual

of

the

F.3d

Nemours

&

factual

2011)).

has

that

v.

Kolon

a

district

in

2012)
Inc./

"'Rule

court

favor

Dep't

Indus.,

a

contained

Fire

Cir.

Accordingly,

the

sufficiency of

allegations

(4th

that

Id. at 663.

Volunteer

467

facial

content

reasonable inferences

462,
Co.

the

disputes,

Kensington

684

Cir.

motion tests

'draw all

plaintiff.'"

Montgomery
E.I,

12(b)(6)

liable.
Twombly,

inference

defendant is liable for the misconduct alleged."

Because a

is

v.

(quoting
637

F.3d

12(b)(6)

does

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

factual

(quoting

Neitzke

(omission

in

allegations.'"

v.

Williams,

original).

A

Twombly,

490

U.S.

complaint

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

Id.

319,

U.S.
327

therefore

at

555

(1989))

survive

a

'that a recovery is very

(quoting Scheuer v. Rhodes,

416 U.S.

236 (1974)).

Although the truth of
assumed,
drawn

may

550

the

facts alleged in

a complaint is

district courts are not bound by the "legal conclusions

from the

facts"

and

"need not
19

accept

as

true

unwarranted

inferences,

unreasonable

Mkts.,

v.

Inc.

2000).

J.D.

Assocs.

documents

dismiss

'so

long

authentic.'"

attached
as

(4th Cir.

In

employment

a

establishing
framework

506, 508

they

175,

complaint

Fire

E.

180

Shore

(4th Cir.

a district court "may

integral

to

or

the

the

Dep't,

motion

complaint

684

to
and

F.3d at

467

Mem'1 Hosp., 572 F.3d 176,

Pitt Cnty.

180

a

set
792

discrimination

complaint

prima
forth

need

facie

...

(1973)."

(2002).

under McDonnell

cases,

not

case

in

Swierkiewicz

Douglas

...

is

as

Cir.

2003)

not

contain

containing

Fourth

removing

sufficient

E.I.

to

Dupont

(emphasis

the

state

de

v.

Douglas

v.

N.A.,

has

facts

under

Corp.

Sorema,

the

Green,

534

U.S.

burden

all

the

added).

"labels

&

and

of

a

however,

Co.,

324

of

F.3d

although

to

[his]

claim."

(4th

a complaint

need

or

761,

allege

765

allegations,"

conclusions"

20

interpreted

plaintiff

elements

Thus,

factual

not a

The United States Court of

"has not,

Nemours

"detailed

mere

specific

an evidentiary standard,

Circuit

for the

v.

Court

The Court explained that the "prima facie case

Appeals

Bass

Supreme

discrimination

McDonnell

Id. at 510.

Swierkiewicz

the

"contain

of

pleading requirement."

facts

F.3d

motion,
the

are

arguments."

2009)) .

that

U.S.

to

or

213

Kensington Volunteer

(quoting Philips v.

411

Ltd.,

In ruling on a 12(b)(6)

consider

held

conclusions,

a

a

complaint

"formulaic

recitation

Twombly,

of

the

550 U.S.

elements

at

of

a

cause

of

action

will

not

do."

555.
Ill.

DISCUSSION

Defendants allege that Plaintiff has again failed to name a

proper

defendant

with

respect

to his ADEA

wage

discrimination

claim, thus depriving the Court of subject matter jurisdiction
over

such

failed

claim.

to

cure

February 13,
of

Defendants

the

2014

Plaintiff's

also

deficiencies

Opinion and
entire

contend

noted

Order,

Second

however,

the

Court

finds

by

thus

Amended

proceeding to the merits of Defendants'
it

that

Plaintiff

Court

the

has

its

in

warranting dismissal
Complaint.

Before

Third Motion to Dismiss,

necessary

to

address

a

few

preliminary matters.
A.

First,

the

Court

Local Rule 7(F)(1)

acknowledges

Defendants'

assertion

that

Plaintiff has failed to respond to each of the arguments made by

Defendants in their Third Motion to
Court

of

observes

his

Local

ADEA
Rule

filed

in

added).

issues

and

7(F)

Plaintiff

retaliation
of

includes

claims

this

Court

civil

case,

the

brief."

E.D.

a

responsive

that

Va.

Defendants argue that,

raised

by

Defendants

Dismiss.
no

in

states

Loc.

discussion

his

that,

opposing

Civ.

Specifically,

party

R.

whatsoever

responsive
when

a

brief.

motion

"shall

7(F)(1)

the

file

is

a

(emphasis

by failing to address all of the

in
21

their

brief,

Plaintiff

has

essentially

failed

to

7(F) (l)'s requirement
failure

were

however,

Court
claims

those arguments.

is

proper."
Cir.

the

to

violation

to

dismiss

solely

upon

the

district

motions

The

ramifications

not at all,

his

of

the

administrative

backdrop

and

654,

failure

7(F)(1),

ADEA

to

and

address

leaves

failing

for

to

even when a motion to

nevertheless

ensure

another

respond,

day

has

an

dismissal

that

743 F.3d 411,

is

416 n.3

(4th

a

discussion

of

either

adequately

or

Exhaustion of Administrative Remedies

Court

provides

process

that

a brief

a

review

plaintiff

filing suit under Title VII or the ADEA.

a

if such

Rule

Plaintiff's

Rule

to a motion to dismiss.
B.

Next,

Court

Even

Local

court

to

Stevenson v. Seat Pleasant,

2014) .

Local

as recently noted by the United States

"the

review

with
Id.

of

for the Fourth Circuit,

unopposed,

obligation

a

declines
based

comply

he "respon[d]."

to

Indeed,

Court of Appeals

dismiss

that

tantamount

the

retaliation

completely

to

obligatory

the

Court's

"review

of

discussion,
the

of

must

the

mandatory

complete

before

Such review serves as

based

evidence,"

on

an

Lovern,

independent
190

F.3d

at

regarding Plaintiff's failure to exhaust his administrative

remedies
depriving

before
this

filing
Court

of

some

of

his

subject

claims.

22

claims

matter

in

this

Court,

jurisdiction over

thus
those

"Before a plaintiff may file suit under Title VII or the
ADEA, he is required to file a charge of discrimination with the

[Equal Employment Opportunity Commission {'EEOC')]."

Calvert Grp., Ltd.,
purposes

551 F.3d 297,

underlying

the

Jones v.

300 (4th Cir. 2009) .4

administrative

charge

"The

requirement

include giving the charged party notice of the claim, narrowing
the

issues

for

speedier

and

more

effective

adjudication

and

decision, and giving the EEOC and the employer an opportunity to
resolve

the

Employment
Balas v.

dispute."

2

Barbara

Discrimination

Law

29-27

Huntington Ingalls

Indus.,

T.

Lindemann,

al.,

ed.

(5th

et
see

also

2012);

711 F.3d 401,

407

(4th Cir.

2013) .

It

is

employee

well

established

seeking

redress

for
the

until

[he]

has

exhausted

406.

"In

any

subsequent

practices
only
Id.

under

consider
at 407

F.3d 954,

in

Title

those

the

administrative

alleging

[or the

allegations

(4th Cir.

ADEA],

included

(citing Evans v. Techs.
962-63

Circuit

discrimination

lawsuit

VII

Fourth

1996)

cannot

in

Applications

suit

Id.

at

employment

federal
the

"[a]n

file

process."

unlawful
a

that

court

EEOC

may

charge."

& Serv.

Co.,

80

("The allegations contained in

the administrative charge of discrimination generally operate to

4 "[T]he

Equal

Pay

Act

. . .

has

no

requirement

of

filing

administrative complaints and awaiting administrative conciliation
efforts." Cnty. of Wash, v. Gunther, 452 U.S. 161, 175 n.14 (1981).

23

limit
"'a

the

scope

of

plaintiff's

any
claims

reasonably related to
follow

'may

from

a

advance

Sydnor

v.

such

(quoting Smith v.
2000)).

EEOC

charge

from an
Balas,

Cnty.,

complaint.")).

judicial

complaint

any

in

[his]

681

F.3d

if

investigation,'

subsequent
591,

the claims

charges

determining

agency."

594

civil

(4th

Id.

Alvarado v.

2012)

that

thereof,

"'exceed the

would

scope of the

naturally

they are

have

arisen

procedurally barred.'"

(quoting Chacko v. Patuxent Inst.,

429

what

claims

a

plaintiff

properly

(4th Cir.

alleged

we may look only to the charge filed with that

at

Bd.

408.

of Trs.

1988)),

administrative

Although

an

EEOC

charge

should

of Montgomery Cmty.

Coll.,

be

(quoting

848 F.2d 457,

the Court is "not at liberty to read into

charges

allegations

they

do

not

contain,"

id.

failure by the plaintiff to exhaust administrative remedies

concerning
courts
551

[he]

suit.'"

Cir.

construed by the Court "'with utmost liberality,'" id.

"[A]

are

506 (4th Cir. 2005)).

before the EEOC,

460

If

First Union Nat'1 Bank, 202 F.3d 234, 247 (4th

711 F.3d at 407-08

"In

[his]

administrative

claims

However,

and

judicial

[his] EEOC charge and can be expected to

investigation

F.3d 505,

in

reasonable

Fairfax

Cir.

subsequent

of

F.3d

a

Title

VII

subject matter
at

300-01

[or

the

federal

jurisdiction over the claim."

Jones,

(citing

ADEA]

Davis

24

claim

v.

N.C.

deprives

Dep't

of

Corrs.,

48

F.3d 134, 138-40

(4th Cir.

F.2d 483, 486-89 (4th Cir.

1995); Vance v.

Whirlpool Corp.,

707

1983)).

C. Title VII and ADEA and Disparate Impact
The Court next considers

his Title VII

disparate

(and,

impact,

presumably,

in

disparate treatment.5
construe

Plaintiff's

disparate

impact

determines

that

jurisdiction

over

Plaintiff's

his

addition

invitation to construe

ADEA)

to

claims

his

as claims of

apparent

claims

of

However, even were the Court to liberally
Title

claims,
it

and

as

would

such

VII

ADEA

Plaintiff

Causes

because

Actions

suggests,

nonetheless

claims

of

lack

the

as

Court

subject-matter

Plaintiff

failed

to

exhaust his administrative remedies with respect to such claims.

A plaintiff alleging discrimination under Title VII or the
ADEA may

proceed

treatment,
557

both

U.S.

with

his

disparate impact,

557,

577

(2009)

claims

under

or both.

theories

See

of

Ricci v.

(recognizing that "Title VII

. . . disparate treatment" and

disparate
DeStefano,
prohibits

"disparate impact" claims);

5 Plaintiff argues in his responsive brief that he has
sufficiently alleged a disparate impact claim, at least with respect
to his Title VII race discrimination claim.
See PL's Br. in Opp'n at
3, ECF No. 28 (asserting that the "facially neutral policy in our case

is NSU's salary system, and the disparate impact alleged on a
protected group is the unequal assignment of salary to Blacks,
similarly qualified and situated, as compared to Whites").
Because
the Court must "view[] even poorly drafted complaints in a light most
favorable to the plaintiff," Matkari, 7 F.3d at 1134 n.4, and because
both a Title VII and an ADEA discrimination claim may rest upon a

disparate impact theory, the Court presumes Plaintiff intends his
argument to apply to both of his Title VII wage discrimination claims,
as well as his ADEA claim.
25

Smith

v.

Jackson,

544

U.S.

228,

240

(2005)

(noting

that

both

Title VII and the ADEA "authorize recovery on a disparate-impact

theory"); Merritt v. WellPoint,
(E.D.

Va.

2009)

(observing

Inc.,

that

615 F.

both

Supp.

445

treatment

"disparate

2d 440,

and

disparate impact" claims "arise when an employer appears to have
violated the ADEA").

If an employee's

protected

trait

employer's decision-making process
outcome,
Reeves

(2000);

a

role

v.

Sanderson

Hazen

of

Plumbing

Paper Co.

v.

treatment cases."

motive

Inc.,

507

is

530

U.S.

Id.

U.S.

604,

critical'

133,

610

in

(citing
141

(2000)).

disparate

Id. (quoting Hazen Paper, 507 U.S. at 610).

Disparate impact cases,

of

Prods.

Biggins,

discriminatory

in the

and had an influence on the

the proper claim is disparate treatment."

"'Proof

proof

"played

"deliberate

on the other hand,

discriminatory

motive,"

do not require

but

require

a

plaintiff claiming disparate impact to allege " 'the presence of
a

facially-neutral

employment

practice

that

as

implemented

treats protected groups of people worse than others.'"
Suffolk

75970,

City

at

Sch.

*25

Mart Stores,

(E.D.
Inc.,

Bd.,

Va.

No.

2:llcv88,

July 14,

783 F. Supp.

2011)
2d

(internal quotation marks omitted)).

ferret

out

equivalent

employment
of

practices

intentional

2011

Dist.

LEXIS

(quoting Padron v. Wal-

1042,

1049

(N.D.

111.

2003)

"Disparate impact seeks to

that

discrimination
26

U.S.

Cross v.

are

the

because

functional
they

cause

significant

adverse

Westinghouse

2005)

at

effects

Savannah

on

River

protected groups."

Co.,

406

F.3d

(Gregory J., dissenting in part);

577

(observing

that

disparate

toward "practices that are

248,

Anderson v.
283

(4th

see also Ricci,

impact

claims

Cir.

557 U.S.

are

directed

not intended to discriminate but

in

fact have a disproportionately adverse effect on minorities").
Plaintiff's

EEOC charge - a mandatory prerequisite for his

Title VII and ADEA claims - makes no mention of any specific NSU

policy,

such as "NSU's salary system," PL's Br. in Opp'n at 3,

ECF No.

28,

ECF

23.

No.

suggest

or its "PTR policy,"
"[N]or

a[ny]

[Plaintiff's]
LEXIS

75970,

charge

that

does

policy
age,

at

*26.

he

or

was

paid

Charge,

the

that

such

impact

ECF No.

discrepancy

claim,

facts

Cross,

he

resulted

persons

employee

U.S.
in

is

of
Dist.

his

and

failed to
from

f 16,

reasonably

2011

"younger

544 U.S. at 241

"the

that

alleged

than
14-1,

Compl.

impacting

Plaintiff

less

employment practice[]," Smith,
disparate

any

sex]."

Although

EEOC

a

allege

disparately

[race,

employees,"
charge

it

PL's Second Am.

EEOC

female

allege

any

in

"specific

(holding that,
'responsible

in
for

isolating and identifying the specific employment practices that
are

allegedly

disparities"
642,

656

responsible

for

any

observed

(quoting Wards Cove Packing Co.

(1989))).

27

statistical

v. Atonio,

4 90 U.S.

Because

Plaintiff's

EEOC

charge

only

"focuses

on

the

treatment [Plaintiff] received at the hands of [Defendants]" and
"does

not

include

any

allegations

that

[any]

policies

or

practices fell more harshly on one group of persons or another,"
Chamblee,

2014 U.S.

Dist. LEXIS 50726,

at **16-17,

Plaintiff's

Title VII and ADEA disparate impact claims, to the extent they
exist in his Second Amended Complaint,

of

[his]

*26.

EEOC charge,"

Thus,

claims

even

under

if

Title

Cross,

2011 U.S.

Plaintiff

VII

and

are "not within the scope

had

the

Dist. LEXIS 75970, at

advanced

ADEA

in

disparate

his

Second

impact
Amended

Complaint, his failure to include such claims in his EEOC charge
would

nonetheless

deprive

the

jurisdiction over such claims.
Plaintiff's

claims

as

disparate

invitation

disparate
impact

to

of

subject

matter

Accordingly, the Court declines

construe

impact

under

Court

his

claims,

Title VII

Title

and

any

VII

(and

such

and the ADEA,

ADEA)

claims

of

to the extent

they are asserted in Plaintiff's Second Amended Complaint,

are

DISMISSED for lack of subject matter jurisdiction.
D. Analysis of Plaintiff's Causes of Action
The Court

now examines

each of

Plaintiff's Causes

alleged in the Second Amended Complaint.
conducts

its

own

"review

of the

of Action

In doing so, the Court

evidence,"

Lovern,

190

F.3d

at

654, to determine whether Plaintiff exhausted his administrative
remedies

with

respect

to

his

Title
28

VII

and

ADEA

disparate

treatment

claims,

such

jurisdiction over
Court

also

Dismiss,

failed

to

treatment

the

Court

Fed.

R.

such claims,

considers

in

that

which

name

merits

Defendants

a

claim,

the

proper

thus

of

allege

defendant

jurisdiction over such claim,

P.

Third

R. Civ.

The

Motion

Plaintiff

his

Court

matter

12(h)(3).

that

in

the

Fed.

Civ.

subject

Defendants'

(1)

depriving

has

ADEA

of

to

has

disparate

subject

matter

P. 12(b)(1),

and

(2)

contend that Plaintiff has not sufficiently alleged claims "upon

which relief can be granted," Fed. R. Civ. P. 12(b)(6).
1.

The

Court

Plaintiff's
the

treatment

No.

first

Title

statute

of

Title VII

VII

race

Defs.'

Plaintiff

statute

of

Complaint

considers

Br.

the

Supp.

a

PL's Br.

claim

Mot.

and

argument

"is

requirements
to

arguing

problem"

"support[s]

discrimination."

and

disagrees,

limitation

Defendants'

discrimination

limitations

cases."

25.

Race Discrimination

that

conclusion

in Opp'n at

barred

of

Dismiss

that

at

4,

"[t]here

his

Second

of

by

disparate

is

ECF

no

Amended

intentional

2, 3, ECF No.

Court need not address either of Defendants'

that

28.

arguments,

The

however,

because the Court's independent "review of the evidence" reveals
that

Plaintiff

with

respect

depriving
claim.

failed

to

the

Lovern,

his

Court

to

Title

of

exhaust

VII

race

subject

190 F.3d at 654.
29

his

administrative

discrimination

matter

remedies

claim,

jurisdiction

over

thus

such

a. Subject Matter Jurisdiction/Exhaustion of Administrative
Remedies

Plaintiff

against

brings

Defendants,

his

on

Title

behalf

VII

of

race

discrimination

"Plaintiff,

claim

individually,

and

by the putative Class consisting of all Black Faculty at Norfolk
State

University,"
University

the

through

essentially the

Compl.

SI 18,

mandatory

alleging
its

23.

prerequisite

Plaintiff s

policy

same work as White

ECF No.

discrimination

"unlawful

claim

race

or

-

no

to

race

titled

in

Plaintiff's

"Discrimination

box titled "Race."

EEOC
Based

of

a box

form,

for

Id.

but

then

On,"

allegations

of

such

is

that

claim."

2013 U.S.

Dist.

LEXIS

Dist.

LEXIS

15426,

at

25292,

Sunoco,
*7-8

at

v.

(E.D.

30

in

at

the

Plaintiff

of

NSU

bereft

of

cannot

Pa.

any

be

Wyndcroft

No.

checked

[who]

the

Pa.

allusion

No.
Feb.

CIV.A.01-2788,
16,

checks

a Charge

deemed

Sch.,

(E.D.

Aug.

section

14-1.

"a plaintiff

**11-12

Inc.,

race

whatsoever

of discrimination on

form

Flora

VII

salaries"

located

ECF No.

discrimination

exhausted

(citing McCutchen v.

the

mention

where

See EEOC Charge,

leaves

for

In fact, the only reference

charge

a particular type

salaries

Title

unequal

Many courts have recognized that
off

by

PL's Second Am.

his

factual

"policy

affecting "all Black Faculty."

unequal

...

Plaintiff's EEOC charge - a

filing

makes

any

of

faculty."

However,
to

discrimination

2002)

to

to

have

12-6455,
25,

2013)

2002 U.S.
(observing

that,

"where

the

EEOC

charge

is

bereft

allegations of racial discrimination,
box of 'race'

as a

of any

allusion

to

merely checking off the

on the EEOC charge is insufficient to exhaust it

claim").6

Indeed,

to hold otherwise

would

effectively

undermine the purposes of the administrative charge requirement

by depriving the charged party of notice

of

the claim,

the

opportunity to narrow the issues for speedier and more effective
adjudication and decision, and the opportunity to work with the

296 F.R.D. 655,
6 See also Mackley v. TW Telecom Holdings, Inc
(D. Kan. 2014) (citing
**32-33
669, 2014 U.S. Dist. LEXIS 6051, at
Duncan v. Manager, Dep't of Safety, City of Denver, 397 F.3d 1300,

1314 (10th Cir. 2005)) (observing that "an EEOC charge must allege
facts in support of the claimant's discrimination claim beyond merely
checking a box on the EEOC form"); Chambers v. Kan. City Kan. Cmty.
College, No. ll-CV-2646, 2013 U.S. Dist. LEXIS 91586, at **7-8 (D.
Kan.
June 28,
2013)
(determining court lacked subject matter

jurisdiction where plaintiff "checked the box for age discrimination,"
but

"his

factual

statement

repeatedly

discriminated against him based on
reconsideration by 2014 U.S. Dist.

explained

that

defendant

race and gender"), approved on
LEXIS 11728 (D. Kan. Jan. 29,

No. 4:13CV00216, 2013 U.S. Dist. LEXIS
Peyton v. AT&T Servs
at *6 (E.D. Mo. June 10, 2013) (observing "that merely checking
a box - without more - does not fulfill the administrative purposes
that a charge with the EEOC is designed to serve"); Allen v. St.
Dist. LEXIS 3340,
No. 00-8558, 2001 U.S
Cabrini Nursing Home, Inc,

2014);
80996,

at *10 (S.D.N.Y. Mar. 9, 2001)
(observing that "Plaintiff's mere
cannot
suffice
to
checking off of boxes 'race' and 'color' . .
confer jurisdiction over plaintiff's race and color discrimination
claims") ; Velazquez-Rivera v. Danzig, 81 F. Supp. 2d 316, 327 (D. P.R.
2000) ("Merely checking a box arguing age discrimination and not

elaborating those claims does not fulfill the administrative purposes
that a charge with the EEOC is designed to serve, and does not provide
a basis

for

a

later

federal

court discrimination

complaint.") , aff'd

in relevant part by 234 F.3d 790, 794-95 (1st Cir. 2000); Mohan v.
AT&T, No. 97 C 7067, 1999 U.S. Dist. LEXIS 10609, at **31-32 (N.D.
111. June 30, 1999) (finding "that checking a box without delineating

the particular aspects of the claim being asserted by checking that
box does not satisfy the [exhaustion] test set forth in Jenkins v.
Blue Cross Mut. Hosp.

Ins.,

Inc.,

538 F.2d 164

31

(7th Cir.

1976)").

EEOC

to

resolve

(observing

the

that

dispute.

the

See

"goals

of

Sydnor,

681

providing

F.3d

at

and

notice

593

an

opportunity for an agency response would be undermined ... if
a plaintiff could raise claims in litigation that did not appear
in his EEOC charge").
Because

whatsoever

Plaintiff s

regarding

because

of

his

exhaust

his

EEOC

any

race,

the

charge

provides

discrimination

Court

administrative

finds

remedies

VII

race

discrimination

claim.

VII

race

discrimination

claim is

that

with

no

factual

against

to

his

Title
Title

for

to

failed

Plaintiff's

Accordingly,
DISMISSED

Plaintiff

Plaintiff

respect

basis

lack of

subject

matter jurisdiction.

2. EPA Claim7

Next,

the

Court

considers

Plaintiff's EPA claim.

Amended

Complaint

"within

the

Reply

Br.

Plaintiff's
facts

at

3,

EPA

sufficient

address

7

to

discrimination

to

the

No.

claim

Defendants'

Although

of

ECF

EPA

in

any

EPA period

fails

show

Second Amended Complaint,
sake of clarity.

allege

29.

an

violations

of

regarding

Defendants
because

EPA

further

Plaintiff

violation.

the

alleged
same

his

EPA

numbered

of

the

limitations."

has

not

Cause

Title
of

that

alleged
does

argument

and

EPA

Defs.'

allege

Plaintiff

statute-of-limitations

Plaintiff

claims

arguments

Defendants argue that Plaintiff's Second

fails

window

Defendants'

not

in

his

VII

sex

Action

in

his

the Court considers them separately for the

32

responsive brief, but asserts that his Second Amended Complaint
"shows

unambiguously"

violation.

that

he

has

sufficiently

pled

an

EPA

PL's Br. in Opp'n at 2, ECF No. 28.

a. Statute of Limitations8
"The

Equal

amendment

to

Charleston
1977) .
barred

Pay
Fair

the

Act
Labor

Cnty.

Sch.

"Under the
unless

345-46

Equal

(quoting

was

enacted

Standards

Dist.,

commenced

action accrued.'"

. . .

558

Pay Act,
within

Act"

F.2d

1963

("FLSA").

1169,

an action

two

in

years

1170

U.S.C.

§ 255(a)).

an

Usery

(4th

v.

Cir.

'shall be forever

after

the

Brinkley-Obu v. Hughes Training,

29

as

"[A]

cause

of

36 F.3d 336,

cause

of

action

arising out of a willful violation may be commenced within three

years after the cause of action accrued."
Under

the

employee

EPA,

in

supra,

at

Package Sys.,

time

cause

is paid

Lindemann,

n.5

"a

No.

manner

19-60;

2012)

that

see

'accrues'

each

violates

the

also

2012 U.S.

Gregory
Dist.

v.

§ 255(a).

day

that

statute."
FedEx

motion

12(b)(6),

to

1

LEXIS 87798,

at

*9

("A new cause of action accrues each

dismiss

which

an

Ground

employer issues a paycheck in violation of the

8 "[A]
Procedure

action

2:10cv630,

(E.D. Va. May 9,

the

a

of

29 U.S.C.

tests

filed
the

under

Federal

sufficiency

of

Rule
the

of

Civil

complaint,

generally cannot reach the merits of an affirmative defense,
the defense that the plaintiff's
PraxAir, Inc., 494 F.3d 458, 464

FLSA."

such as

claim is time-barred."
Goodman v.
(4th Cir. 2007).
However, "in the

relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense may be
reached by a motion to dismiss filed under Rule 12(b)(6)." Id.
33

(citing Nealon v. Stone, 958 F.2d 584, 591
Defendants

allege

that

Plaintiff's

(4th Cir. 1992))).

"March 21, 2013

filing

of this action does not capture pay for any workweeks covered by

the Salary Study," and, thus, his Second Amended Complaint "does
not

assert,

on

its

face,

a

Reply Br. at 3,

ECF No. 29.

that

EPA,

under

the

timely

cause

of

action."

It is true, as Defendants observe,

Plaintiff

"may not

have

relief

respect to workweeks prior to March 21, 2010."
Mot.

to

Dismiss

Amended

at

4,

Complaint,

suggests

that

ECF No.

drafted

Plaintiff

Defs.'

was

25.

However,

largely

in

receiving

. . . with

Defs.' Br. Supp.
Plaintiffs Second

the

present

paychecks

tense,

allegedly

in

violation of the EPA at least as recently as February 27, 2014 the

date

Plaintiff

filed

PL's Second Am. Compl.

faculty

members

Plaintiff,"

SI 15,

. . .

"teach

his

the

Second

Amended

ECF No. 23

teach
same

in

the

courses,"

Complaint.

See

(alleging that "female

same
"work

department
under

the

as
same

chairperson, and work under nine month contracts," but "Fl earns
$62,000,

and

F2

earns

(emphasis added)).
Second
last

Amended

received

March 21,

2010

Complaint
a

be

one

of

while

Plaintiff

earns

$57,605"

Defendants have identified no facts in the

paycheck

(for

ordinary violations).
to

$61,852,

"the

affirmatively
allegedly

showing

violating

willful violations)

that
the

Plaintiff
EPA

or March 21,

before

2011

(for

Accordingly, because this does not appear
relatively

rare
34

circumstances

where

facts

sufficient

alleged

to

rule

on

[Defendants']

in the complaint,"

458, 464 (4th Cir. 2007),
dismiss

Plaintiffs

Goodman

affirmative

v.

PraxAir,

defense

Inc.,

are

494 F.3d

the Court DENIES Defendants' motion to

EPA

claims

based

on

the

statute

of

limitations.

b.
The

Court

Sufficiency of Pleading

next

determines

whether

Plaintiff's

Second

Amended Complaint sufficiently alleges an EPA claim "upon which
relief can be granted."

Fed. R.

a

wage

prima

facie

case

of

Civ.

P.

12(b)(6).

discrimination

To establish

under

the

EPA,

a

plaintiff must show: "(1) that [his] employer has paid different
wages

to employees

(2)

of opposite sexes;

that

said employees

hold jobs that require equal skill, effort, and responsibility;
and

(3)

that

conditions."

such

not

decisive.

282,
to

288

show

[his]

"Job
Actual

Harbour Rec.

descriptions
job

Brennan v.

(4th Cir.
that

performed

under
Club,

the

1974).
skill,

job performance

are

and

requirements

similar

180

(citing Corning Glass Works v.

(1974)).

controlling."

are

Brinkley v.

(4th Cir. 1999)
188, 195

jobs

F.3d

Brennan,

titles,
and

Prince William Hosp.

working
598,

613

417 U.S.

however,

are

performance

are

Corp.,

503 F.2d

"[T]he burden falls on the plaintiff
effort

and

responsibility

[substantially]

higher-paid [fe]male employee."

equal

to

required

those

of

in

a

Wheatley v. Wicomico Cnty., 390

35

F.3d 328,
U.S.

332 (4th Cir. 2004)

(citing Corning Glass Works,

417

at 195).

Defendants argue that Plaintiff's Second Amended Complaint
fails to allege that the jobs held by Plaintiff and his female

comparators
because

"require

Plaintiff

equal

merely

to

Dismiss

Compl.

SI

15,

Plaintiff

at

ECF

fails

comparators

that

No.

25

23) .

the

comparators

"similarly

PL's

that

or

similar

taught

Br. Supp.
Second

further

allege

situated,"

"under

Defs.'

(quoting

Defendants

sufficiently

occurred

and responsibility"

if not the same."

ECF

No.
to

are

disparities

3,

effort,

"recites

'courses that are fungible'
Mot.

skill,

Am.

argue

that

and

his

he

that

any

working

salary

conditions,"

including that the disparities existed "in the same University
term or year."

Id.

First, "application of the Equal Pay Act is not restricted
to identical work."

Brennan,

503 F.2d at 291.

need only be "substantially equal."

Id.

Rather,

at 290

the jobs

(finding that,

although the asserted work was "not identical," the "variations"
did

not

work").

the

"affect

to
a

Brewster v.
Brobst

substantial

equality

of

their

overall

"The crucial finding on the equal work issue is whether

jobs

whether

the

v.

be

compared

significant
Barnes,
Columbus

have

portion

788

'common core'

of

the

two

985,

991

Int'l,

761

F.2d

of

(4th Cir.

F.2d

Servs.

a

36

jobs

148,

tasks,

is

i.e.,

identical."

1986)
156

(quoting
(3d

Cir.

1985)).

If

the

jobs

have

a

"'common

core'

of

tasks,"

the

"inquiry then turns to whether the differing or additional tasks
make the work substantially different."
Plaintiffs
and

his

Second Amended Complaint claims

comparators

teach

PL's Second Am. Compl.
Webster's Dictionary,
nature

that

equal

one

part

or

"fungible"
Brewster,

quantity

in

the

"make

788 F.2d at

the

or

Plaintiff

"fungible"

courses.

According to Merriam-

Court

be

any

work

Thus,

finds

replaced

satisfaction of

that

the

991.

may

Dictionary

assertion

classes

proceedings,

or

Collegiate

no

same"

that

"fungible" is defined as "being of such a

quantity

make

"the

SI 15, ECF No. 23.

part

Merriam-Webster's

Defendants

Id.

507

difference

another

obligation."

(11th

ed.

2008).

between

substantially

at least at

that

an

by

the

different."

this stage of the

Plaintiff

has

sufficiently

alleged that the jobs are "substantially equal in skill, effort,
and responsibility," Straq v. Bd.
(4th

Cir.

Visitors

**19-20
word

1995)

of

the

(W.D.

(emphasis
Univ.

Va.

"counterpart"

implying

of

Sept.

added);

Va.,

12,

"connotes

performance

of

of Trustees,

2011

2011)
one

cf.
U.S.

"essentially

under essentially the same conditions"

Second,

Second

as

discussed

Amended

Complaint

above,

is

Dist.

is

the

v.

LEXIS

948

Rector
102279,

plaintiff's

use

&
at

of

similarly

situated,"

same

functions,

job

(emphasis added)).

Plaintiffs

drafted
37

Ghayyada

(finding
who

55 F.3d 943,

in

EPA

the

claim

present

in

his

tense.

Plaintiff

asserts

that

his

comparators

"teach

in

the

same

department as Plaintiff," and alleges that "Fl earns $62,000, F2
earns $61,852,

Compl.

SI 15,

while Plaintiff earns $57,605."

ECF No.

23

(emphasis added).

PL's Second Am.

Defendants do not

identify any facts in Plaintiffs Second Amended Complaint or
any

other

pleadings

salary disparities

filed

by

alleged by

Plaintiff

ECF No. 25.

Thus,

Amended Complaint

sufficiently pleads - at

to employees

hold jobs that

similar

and

working

Accordingly,

the

not occur "in the

sexes;

[substantially]

(3)

that

such

conditions."

Defendants'

least at

this

stage

[his] employer has paid different

of opposite

require

responsibility;

did

that

the Court finds that Plaintiffs Second

of the proceedings - "(1) that

wages

suggesting

Defs.' Br. Supp. Mot. to Dismiss

same University term or year."
at 3,

Plaintiff

(2)

that said employees

equal skill,

jobs

are

Brinkley,

Third Motion to

effort,

performed

180

F.3d

Dismiss

and

under

at

598.

is DENIED with

respect to Plaintiff's EPA claim.
3.

The

Court

Title VII

next

Plaintiffs Title VII
statute

of

NSU."

Defs.'

Plaintiff

considers

and,

even

no accusation

Br.

contends

Defendants'

argument

that

sex discrimination claim is barred by the

limitations

Plaintiff "makes

Sex Discrimination

Supp.

Mot.

that

of

to

there

is

38

if

his

claim

were

timely,

intentional discrimination by

Dismiss
"no

at

4,

statute

ECF
of

No.

25.

limitation

problem" and asserts that he has
conclusion
at 2,

of

intentional

ECF No.

"allege[d]

facts to support a

discrimination."

PL's

Br.

in

Opp'n

28.

a. Subject Matter Jurisdiction/Exhaustion of Administrative
Remedies

First,

Second

Court

Amended

exhausted
VII

the

sex

his

looks

Complaint

Amended

Complaint

salary

was

so

claim

asserts
woefully

Plaintiff's

to

administrative

discrimination

faculty."

to

determine

remedies
in

that

EEOC

this

his

Plaintiffs

discovered
compared

SI 12,

and his

Plaintiff

filing

Court.

inadequate,"

PL's Second Am. Compl.

whether

before

Plaintiff

charge

Title
Second

that

to

ECF No. 23.

"his

"female

Thus,

to

the extent that Plaintiff alleges that his sex "played a role in

the

employer's decision-making process

the outcome,
615

F.

that

2d
on

paid unequal
ECF No.

his

14-1.

sex

process"

at

445.

the

wages

Plaintiff's

basis

than

of

sex

EEOC

(male)

Thus,

an

influence on

. . . female

I

employees."

Merritt,

alleged:

continue

to

"I
be

EEOC Charge,

Because Plaintiff's EEOC charge also alleged that

"played

a

regarding

sufficiently
because

charge

...

role

his

in

the

salary and

employer's
that

the

was a lower salary than female employees,

charge

had

the proper claim is disparate treatment."

Supp.

believe

and

advanced

Plaintiff's

a

EEOC

39

claim
charge

decision-making

resulting

"outcome"

id. , Plaintiffs EEOC

of
and

disparate
his

treatment.

Title

VII

sex

discrimination

"focus[]

claim

in

his

Second

on the treatment that

Amended

[Plaintiff]

Complaint

both

received at the hands

of [Defendants]," Chamblee v. Old Dominion Sec. Co., L.L.C.,

No.

(E.D.

Va.

3:13cv820,

Apr.

2014

11,

2014),

exhausted his
VII

U.S.

sex

Dist.

LEXIS

the Court

finds

jurisdiction

that

at

**16-17

Plaintiff

sufficiently

administrative remedies with respect to his

discrimination

Accordingly,

50726,

the

Court

over

claim

determines

Plaintiffs

of

disparate

that

Title

it

VII

has

treatment.

subject

sex

Title

matter

discrimination

disparate treatment claim.
b.

Next,
the

Statute of Limitations

the Court determines whether Plaintiff "is barred by

statute

of

limitations"

from

bringing

discrimination claim against Defendants.

to Dismiss at 4,

ECF No. 25.

his

Title

Defs.'

Br.

VII

Supp.

sex

Mot.

A Title VII plaintiff must file a

charge with the EEOC within 300 days of the adverse employment
action,

and

receiving

a

must

passed by Congress

618

in

(2007),9

suit

right-to-sue

§§ 2000e-5(e) (1) ,

decision

file

in

court

letter

(f)(1).

The

within

from

Lilly

the

provides

v.

Goodyear

that

"an

Tire

EEOC.

Ledbetter

in 2009 in response

Ledbetter

ninety

days

42

Fair

of

U.S.C.

Pay

Act,

to the Supreme Court's
&

unlawful

Rubber

Co.,

employment

550

U.S.

practice

9 In Ledbetter, the Supreme Court held that the time for filing
an EEOC charge of compensation discrimination in violation of Title
40

occurs . . . when an individual is affected by application of a

discriminatory

compensation

including each time wages,
paid."

decision

benefits,

or

other

practice,

or other compensation is

1 Lindemann, supra, at 19-74 (emphasis added)

42 U.S.C. § 2000e-5(e)(3)(A)).

(quoting

"One effect of the Ledbetter Act

is to harmonize more closely the concept of timeliness under the

EPA and Title VII."

Id.10

Thus, "[i]f an incident occurred more

than 300 days before the filing of the plaintiffs EEOC charge,
it can be raised in a subsequent lawsuit only if it were part of

a continuing violation,

and at least one act in that violation

occurred within the 300-day statute of limitations."

Balas v.

Huntington Inqalls Indus., Inc., No. 2:llcv347, 2011 U.S. Dist.
LEXIS 110138 at **6-7
v. Morgan,

(E.D. Va.

26,

2011)

charge of discrimination

Plaintiff was required to "file his

[with the EEOC]

within three hundred

days of an adverse employment action."

Mot. to Dismiss at 4, ECF No. 25.

Ledbetter

(citing AMTRAK

536 U.S. 101, 117 (2002)).

Defendants assert that

(300)

Sept.

Fair

Pay

Act

"permits

Defs.'

Br.

Supp.

Acknowledging that the Lilly

the

plaintiff

to

allege

VII begins when the "discriminatory pay decision was made," Ledbetter,
550 U.S. at 629, and that "the period did not start again each time
the employer issued a new paycheck," 1 Lindemann, supra, at 19-74.

10 The Lilly Ledbetter Fair Pay Act "also amended the ADEA, the
Rehabilitation Act of 1973, and the ADA [Americans with Disabilities
Act of 1990], but not the EPA, which does not present the same
timeliness issue because there is no charge filing requirement under
that statute."

1 Lindemann,

supra,

at 19-74.

41

discriminatory

pay

decisions

then demonstrate the

effect

Defendants argue that
the

of

statute

of

No.

29.

statute
that

as

his

because

July,

that

Defs.'

Plaintiff

argument,

2012

compensation decision."

Although

specific

of

period
current

on

[and]
pay,"

Reply

no

Br.

could

acts

be

3,

ECF

Defendants'

because

"allege[s]

mention

at

misunderstands

however,

that

"makes

he

responds

or

omissions

interpreted

as

a

PL's Br. in Opp'n at 3, ECF No. 28.

Plaintiff

dates

Plaintiff

decisions."

limitations

as

charging

such decisions

Second Amended Complaint

late

the

Plaintiff's Title VII action is barred by

pay

It appears
of

of

limitations

discriminatory

before

his

did

not

allegedly

provide

in

his

discriminatory

EEOC

charge

paychecks,

he

indicated that the alleged discrimination occurred between April

1,

2008 and December 8,

charge.

EEOC Charge,

2011,

the date Plaintiff filed his EEOC

ECF No. 14-1.

indicating a

"continuing action,"

basis of sex

(male)

than

younger

(emphasis

and

on

and

December 21,

he

filed

female

Accordingly,
compensation

employees

Plaintiff's
received a

2012,

his

and complained

that,

"on the

and age I continue to be paid unequal wages

added).

indicates that he

Plaintiff checked the box

Pi's

of

right-to-sue

in

this

University."

Second

Second Am.

Complaint

the

Amended
letter

Compl.

Court

on

Id.

Complaint

from the EEOC

SI 12,

ECF No.

March

21,

23,

2013.

although Plaintiffs EEOC charge appears to allege
decisions

made

outside
42

of

the

300-day

charging

period,

it also alleges a "continuing violation" and appears to

allege
the

"at

least

300-day

LEXIS

one

statute

110138

at

act
of

in

that

violation

limitations."

**6-7.

Because

Plaintiffs EEOC charge or

the

occurr[ing]

Balas,

Court

2011

cannot

within

U.S.

Dist.

determine

from

his Second Amended Complaint whether

Plaintiff's EEOC charge was filed untimely,11 the Court DENIES
Defendants'

motion

to

dismiss

Plaintiffs

Title

VII

sex

discrimination claims based on the statute of limitations.

c. Sufficiency of Pleading
The

Court

Complaint
claim

claim,
are,

considers

sufficiently

"upon

12(b)(6).

now

which

alleges

relief

Plaintiff,

whether

a

can

relying

be
on

Plaintiffs

Title

VII

sex

granted."
the

discrimination

Fed.

facts

Amended

alleged

R.

Civ.

P.

his

EPA

in

asserts that the alleged "violations of the Equal Pay Act

ipso

facto,

violations

Compl. SI 19, ECF No. 23.
claims

often

are

raised

of

Title

However,
together

VII."

For

19-76.

element

of a

example,

in

the

same

F.2d at 993 n.13

Second Am.

[Equal

Pay]

intent

Act.'"

(quoting Sinclair v. Auto.

suit,

there

1 Lindemann,

"'[d]iscriminatory

claim under the

PL's

"[a]lthough EPA and Title VII

many key differences between the two laws."
at

Second

is

are

supra,
not

Brewster,

Club of Okla.,

an
788

Inc.,

11 "Filing a timely charge of discrimination with the EEOC is not
a jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject to waiver,
estoppel,
Inc.,

and

455 U.S.

equitable
385,

393

tolling."
(1982).

43

Zipes

v.

Trans

World

Airlines,

733 F.2d 726, 729 (10th Cir. 1984)); see also Diamond v. T. Rowe

Price Assocs.,

852 F.

Supp.

372,

389

(D.

Md.

1994)

(observing

that the EPA "establishes a form of strict liability" because a

plaintiff need not "prove that the employer consciously decided
to pay the plaintiff unequal wages because of her gender").
Rather, a plaintiff alleging discrimination under Title VII must

plead

facts

allowing

the

Court

discriminated against him,

to

infer

that

his

employer

"'with respect to his compensation,

terms, conditions, or privileges of employment, because of such
individual's

Mqmt.,

. . .

sex.'"

Hill

v.

Lockheed

354 F.3d 277, 283 {4th Cir. 2004)

original)

Martin

(en banc)

Logistics

(emphasis in

(quoting 42 U.S.C. § 2000e-2(a)(1)); see also Diamond,

852 F. Supp. at 289 n.80 (noting that "intent is relevant" under
Title VII, where the "plaintiff must ultimately prove that the

challenged employment

practices were the product of conscious

discrimination") .

Plaintiff

sufficiently
intentional

28.

In

that

"allege[s]

that

of

such

"NSU

refused

to

the

Director

meet

with

Second

to

PL's

issue,
of

Br.

in

Human

then

Plaintiff
and

Complaint

conclusion
at

2,

points

to

of

ECF No.

to

his

information

reneged," and

Resources,

[Plaintiff]

a

Opp'n

cooperation

and

44

Amended

support

conclusion,

promised

salary disparities

President,

his

facts

discrimination,"

support

allegations
the

insists

and

discuss

the

that

on

"the

Board all

the

salary

inequities issue."
is

not

Id. at 2-3.

implausible

incorrect data

to

that

the

Plaintiff also alleges that "it

the

University

Faculty Committee

discriminatory purpose."

must

plead

enough

"plausible on its face."
the

Court

that

cannot

his

sex

process

[regarding

his

order

to

and

conceal

a

Plaintiffs Second Amended

facts

to

Twombly,

reasonably

"played a

in

faulty

Id. at 2 (emphasis added).

To survive a motion to dismiss,

Complaint

supplied

from

in the

salary]

outcome."

Merritt,

615

F.

allegations

regarding

Defendants'

that

his

claim

550 U.S. at 555.

infer

role

show

and

Supp.

However,

Plaintiffs

employer's
had

an

2d

at

is

assertions

decision-making

influence
445.

unwillingness

on

the

Plaintiffs

to

engage

with

Plaintiff in his salary battle fail to "raise a right to relief
above

the

Indeed,

speculative

even

if

NSU

comparison study,

level."
had

Twombly,

cooperated,

paragraph 11 of his
do,

such

Plaintiff

a

data

conducted

Second Amended Complaint that
would

lower

not

salary

because

that
of

critical'

in disparate treatment cases."

alleges

445

(quoting

no facts

Hazen

"'[p]roof of

NSU
his

impact

at

claims,

prove

Paper,

507

at
a

555.
salary

reflecting a

as Plaintiff alleges in

disparate

2d

U.S.

and provided Plaintiff with data

discrepancy in male and female salaries,

to

550

NSU promised

intended
sex.

to

Unlike

discriminatory motive

U.S.

Merritt,

at

615

610).

F.

in

is

Supp.

Plaintiff

in his Second Amended Complaint allowing
45

pay

the

Court to

reasonably infer that

him with respect to
354

F.3d

at

283.

"nothing more
that

he

Cnty.

than

Bd.,

salary "because of

Accordingly,

state

suffered

Sch.

his

Defendants discriminated against

that

adverse

107

because

he

was

in

employment

F. App'x

351,

[his] sex."
Plaintiff

Hill,

has

done

a protected class

decisions,"

352-53

Carpenter

(4th Cir.

2004),

and
v.
his

Title VII sex discrimination claim is DISMISSED.12
4. ADEA Age Discrimination

The Court next considers whether

Plaintiff has alleged his

ADEA claim against a proper defendant.

In its February 13, 2014

Opinion

Plaintiffs

and

leave to

at

*15.

matter

the

Court

amend his Complaint

President

capacity,

Order,

of

Norfolk

jurisdiction

for the

State

as a Defendant."
Defendants

granted

argue

over

"purpose of

University,

Earl,
that

2014
the

immune from suit.

brief

regarding

who is

U.S.

Court

Plaintiff's

Plaintiff filed his ADEA claim against
President of NSU,

in

Dist.
still

individual

LEXIS 18583,
lacks

subject

claim

Atwater,

not a proper defendant

for

inserting the

his

ADEA
Dr.

request

and,

because

the

former

therefore,

Plaintiff makes no argument in his responsive

his

ADEA claim,

and does

not

request

leave of

12 Even if the Court did not lack subject matter jurisdiction over
Plaintiff's Title VII race discrimination disparate treatment claim,
such claim would likewise be dismissed for failing to sufficiently
plead that Plaintiff's salary was lower "because of
[his race]."
Hill,

354 F.3d at 283.

46

Court

to

amend his

Second Amended Complaint

in

the

event

that

the Court agrees with Defendants.

a. Subject Matter Jurisdiction/Exhaustion of Administrative
Remedies

The

his

Court

must

administrative

treatment

of

Second

"discriminat[ed]

salary,
"his

in

faculty."

age

was

so

Plaintiff

his

filing

exhausted

disparate

discrimination
Complaint

against its aged

of

whether

before

Amended

violation

salary

consider

remedies

claim

Plaintiffs

first

the

woefully

PL's Second Am.

ADEA,"

this
that

Court.

Defendants

faculty in terms of

specifically

inadequate,"

Compl.

in

asserts

(over 40)

ADEA

alleging

compared

to

that

"younger

SISI 12, 16, ECF No. 23.

Thus,

to the extent that Plaintiff alleges that his age "played a role
in

the employer's

on

the

outcome,

Merritt,
which

age

I

decision-making process

615

the

F.

Plaintiff

Supp.

employees,"

Plaintiff's

age

to

EEOC

outcome,"

2d at

stated,

continue

process"

proper

"I

be

Charge,

regarding
Merritt,

his

445.

role

615

F.

the

basis

than

14-1,

also

in

"and

Supp.

on

[NSU's]
had

2d

an

at

treatment."

EEOC charge,

wages

No.

salary

disparate

that

unequal

ECF

a

is

Plaintiff's

believe

paid

"played

claim

and had an influence

in

of

. . .

younger

. . .

alleged

that

decision-making

influence
445.

on

Thus,

the
both

Plaintiffs EEOC charge and his Second Amended Complaint advance
a

claim

of

disparate

treatment

47

because

they

"focus[]

on

the

treatment

that

[Defendants],"

17.

[Plaintiff]

Chamblee,

Accordingly,

exhausted his

the

2014

received

U.S.

finds

Court

administrative

Dist.

that

remedies

at

the

LEXIS

50726,

Plaintiff

with

hands

at

of

**16-

sufficiently

respect

to

his ADEA

age discrimination disparate treatment claim.

b. Subject Matter Jurisdiction/Eleventh Amendment Immunity
The Court

proper

defendant,

jurisdiction.

Dr.

Am.

considers

thus

whether

depriving

Plaintiff

the

Court

failed to name

of

subject

Plaintiff seeks a declaratory judgment,

Atwater,

Second

next

individually,

Compl.

prospective

at

15,

injunctive

practices,"

id.,

"in
ECF

violation
No.

23.

of

relief

namely,

"[e]njoining

the

matter

declaring

ADEA."13

Plaintiff

the

"discriminatory

a

also

PL's
seeks

offending

practices

and

policies" where "older faculty are treated unequally in terms of
salaries,"

id.

contends "has
SI 16.

Dr.

SI 20,

and

the

PTR

policy,

which

Plaintiff

a discriminatory impact on older faculty," id. at

Plaintiff

against
Dr.

at

states

Tony Atwater,

Atwater "enforced the

that

he

brings

in his
[PTR]

his

ADEA

claim "solely

individual capacity," because

policy" and "refused to discuss

13 In its February 13, 2014 Opinion and Order,

the Court granted

Plaintiff's request for leave to amend his Complaint for the "purpose
of inserting the President of Norfolk State University,
in his
individual capacity, as a Defendant."
Earl, 2014 U.S. Dist. LEXIS
18583, at *15 (E.D. Va. Feb. 13, 2014) (citation omitted).
However,
rather than naming the current president of NSU as a defendant,
Plaintiff named "Dr. Tony Atwater,
(former Pres. of Norfolk State
Univ) , individually," as a defendant in this case.
PL's Second Am.
Compl. at 1, ECF No. 23 (emphasis added).

48

reform with

faculty who

. . . [in] cur[ing]
The

sought

out

his

counsel

and

inequities in faculty salaries."

Eleventh

Amendment

to

the

United

States

assistance
Id.

Constitution

provides that the "judicial power of the United States shall not
be construed to extend to any suit

or prosecuted against

in law or equity,

one of the United

commenced

States by Citizens of

another State or by Citizens or Subjects of any Foreign State."
U.S.

Const,

amend.

XL

"The

State

is

immune

unconsenting
courts

by

State,'"

her

citizens

Constantine,

Jordan,

415

extends

to

Thomas

own

v.

(4th Cir.
519 U.S.

U.S.
'state

Prince

2012)
425,

agents

do

not

in

federal

as by

citizens

of

another

at

479

(1974)),

Cnty.

(quoting

and

Pub.

that

139,

14 6

only

to

&

(1993).

of

also
Lee-

Sch.,

of the

Ex parte Young,

employ

the

Sewer Auth.

However,

prospective

state officers

v.

"immunity

666

Univ.

F.3d

244,

248

v.

Doe,

of Cal.

Eleventh

which ensures

Amendment

relief,

v.

Metcalf

&

not

state

means

permit

Inc.,

narrow:

of

Puerto
506

U.S.

It applies

judgments

declaring that they violated federal
49

a

immunity."

Eddy,

"the exception is

does

as

that

is regarded as carving out

a necessary exception to Eleventh Amendment
Aqueduct

Edelman

instrumentalities,'"

state

avoiding compliance with federal law,

Rico

'an

(1997)).

"The doctrine

officials

that

brought

(quoting Regents

429

held

well

and

George's

has

suits

F.3d

663

Court

from

as

411

651,

Supreme

law

against
in the

past,

and

their

has

no

agencies,

sought."

Id.

which

457 U.S.

avoid

the

Eleventh

state

officials

complaint
"seeks

85

"in

against

Mansour,

bar

to

474 U.S.

suit

relief properly characterized as

Inc.

v. Pub.

1639,

To

Serv.

Comm'n of Md.,

Office for Prot.

relief

68 (1985);

proceed
only

his

law"

federal

535 U.S.

635,

against
if

and

prospective."

& Advocacy v.

and

a plaintiff may

and

of

the

64,

capacities,"

violation

States

of

Therefore,

official

ongoing

the

regardless

(1982)).

their

an

suits

barred

Amendment

"alleges

see also Va.
1632,

are

in

(citing Green v.

Cory v. White,

Md.,

application

Verizon

645 (2002);

Stewart,

131 S. Ct.

(2011) .

determine

the

applicability

of

the

Ex

parte

Young

exception, "a court need only conduct a straightforward inquiry
into whether [the]
federal

law

and

prospective."
inquiry

(1997)

...

seeks

relief

Verizon Md.,

analysis

(citing Idaho v.

law

[2]

into whether

include an

281

complaint [1] alleges an ongoing violation of

("An

is

suit
of

535 U.S.
lies

the

Coeur d'
allegation

properly

under

merits

of

characterized

at 645.

Generally,

Ex parte
the

Alene Tribe of Idaho,
of

ordinarily

an

ongoing

considering a motion to dismiss,

the

Id.

at

521 U.S.

violation

sufficient.")).

of

demonstrate

an

646

261,

However,

when

reviewing court must also

ongoing violation of
50

not

federal

determine whether the plaintiffs complaint alleges facts
if true,

"the

Young does

claim."

as

federal law.

that,
See

S.C.

Wildlife

Fed'n

("For

purposes

2008)

v.

Limehouse,

of

Eleventh

sufficient to determine that

if

proven,

relief

is

Rehab.

that

would

violate

the

181

F.3d

"threshold

F.3d

324,

Amendment

[the plaintiff]

federal

prospective.");

Servs.,

549

law

Calderon

1180,

1183

question"

is

(4th

analysis,

Cir.

it

is

alleges facts that,

and

v.

332

that

Kan.

Dep't

(10th Cir.

whether

the

requested
of

1999)

the

Soc.

&

(observing

complaint

gives

"any indication that [plaintiff] might be entitled to injunctive
relief

for

ongoing

federal

. . .

violations

by

state

officials").

i. Plaintiff's Claim against Dr. Atwater, Individually
The

claim

is

official
claim

Court

advanced
capacity.

"solely

capacity,"
not

must

first

against

Dr.

Plaintiff

against

PL's

consider

Dr.

Second Am.

expressly indicate

whether

Atwater

asserts

Plaintiff s

in

his

that

he

Tony

Atwater,

in

Compl.

SI 16,

whether he

is

suing

personal

brings
his

ECF No.
Dr.

ADEA

his

or
ADEA

individual

23,

but

Atwater

does

in his

individual "personal" or "official" capacity.
Relief "against an
only

a

particular

official in his personal capacity binds

office

ordinarily is devoid of

hand,

relief

capacity binds

1 Lindemann,

"directed

whoever

not

his

successor,

and

operational significance once the named

defendant leaves office."

other

holder,

holds

at

the
51

an

supra,

official

position

in

at 22-57.

in

his

question;

On the

official

if

the

named

defendant

leaves

office,

automatically substituted."
Fed.

R. Civ.

Id.

P. 25(d) (1)).

Court assumes,

then

at 22-56

his

(citing,

without deciding,

injunctive

relief

is

inter alia,

Out of an abundance of caution,

the

that Plaintiff's ADEA claim is

against Dr. Atwater in his official capacity,

or

successor

against

Dr.

Atwater

as any declaratory

in

his

personal

capacity would be "devoid of operational significance."

Id.14

Accordingly,

NSU"

rather

than

the

Court

"Dr.

Tony

will

refer

Atwater"

in

to

"the

its

president

analysis

of

of

Plaintiff's

ADEA claim.

ii.
The

Court

next

Plaintiff's Requested Relief
considers

whether

Plaintiff s

ADEA

claim

"alleges an ongoing violation of federal law" and "seeks relief

properly characterized as prospective."
at 645.
[the

Verizon Md.,

535 U.S.

Plaintiff requests a declaratory judgment "[d]eclaring

president

of

NSU]

in

violation

of

ADEA,"

relief "[e]njoining the offending practices."
Compl. at 15, ECF No. 23.

and

injunctive

PL's Second Am.

The Fourth Circuit has held that such

relief is "properly characterized as prospective," Verizon Md.,
535 U.S.

at

645,

because the request for "injunctive relief is a

14 Plaintiff's Second Amended Complaint also seeks "[c]ompensatory
damages . . . for retaliation, and retaliatory hostile environment,
under ADEA, Title VII, and the EPA."
PL's Second Am. Compl. at 16,
ECF
No.
23.
However,
because
the
Court
dismisses
Plaintiff's
retaliation claim, as discussed below, the Court need not address Dr.

Atwater's
capacity
with
respect
compensatory damages under the ADEA.
52

to

Plaintiff's

request

for

prospective claim against an action that would violate federal
law,"

and

the

requested

declaratory

relief

"is

simply

the

determination that past actions by the Defendants did not comply
with

[the

ADEA],"

Defendants
F.3d

at

other

332.

than

Cf.

judgment where

and

"adds
the

Green,

there

no

additional

injunctive
474

U.S.

burden

relief,"

at

73

on

the

Limehouse,

549

(denying

declaratory

was "no claimed continuing violation of

federal law, and therefore no occasion to issue an injunction").
Plaintiff's

the ADEA,

PL's

ADEA

Second Am.

its face appears

the

Court

facts that,
549

F.3d at

Compl.

"continued"

SI 20,

determine

does

whether

if proven,

violations

of

23, which,

ECF No.

an ongoing

535 U.S. at 645.

Eleventh Amendment

must

alleges

to "allege[]

law," Verizon Md.,
that

claim

on

violation of federal

However, before concluding

not bar

Plaintiff's

Plaintiff's

ADEA

would violate federal

claim,

claim

law."

the

"alleges

Limehouse,

332.

iii. Ongoing Violations of Federal Law

Before
the

Court

continuing
acknowledges

sufficiently alleges
be

"confused with

cause

of

Co.,

the

action."

341

previously

U.S.

that

an

the

analysis
the

instructed

Plaintiff's

ADEA claim,

of

whether

Plaintiff

ongoing violation of

federal

law could

question

question

whether

Montana-Dakota

246,

of

249

Utils.

(1951).

that,

"[w]hen
53

the

complaint

Co.

v.

Nw.

The

Fourth

a

defendant

states

Pub.

a

Serv.

Circuit

has

moves

for

dismissal both on
Fed. R.

R.

Civ.

Civ.

court

P.

lack of subject matter jurisdiction grounds,

P. 12(b)(1),

12

(b)(6),

and for failure to state a claim,

'the

proper

procedure

for

the

Fed.

district

is to find that jurisdiction exists and to deal with the

objection as a direct attack on the merits of the plaintiff's
case.'"

Plumer v.

Maryland,

(quoting Daigle v.
1347

(5th

whether

Cir.

F.2d 927,

Opelousas Health Care,

1985) ) .

a motion

915

"The

to dismiss

Fourth

932

Inc.,

Circuit

based on the

(4th Cir.

1990)

774 F.2d 1344,

has

not

resolved

Eleventh Amendment

is

properly considered pursuant to Rule 12(b)(1) or Rule 12(b)(6)."
Haley

v.

Va.

Dep't

of

Health,

27

Am.

Disabilities

Cas.

(BNA)

301, 2012 U.S. Dist. LEXIS 161728,

at *5 n.2

(W.D. Va. Nov. 13,

2012)

F.3d 521,

525

n.2

to

treat

(citing Andrews

2000)) .

"The

recent

v.

Daw,

trend,

201

however,

appears

Amendment Immunity motions under Rule 12(b)(1)."
Here,
12(b) (6)

in

Defendants

do

not

cite

their Third Motion

to

either

Rule

Dismiss

or

(4th Cir.
Eleventh

Id.
12(b)(1)

or

Rule

supporting brief,

but argue that "this Court lacks jurisdiction over [Plaintiffs]
cause of action for age discrimination under the ADEA."

Br.

Supp.

omitted).

ADEA

claim

Mot.

to

Because

fails

granted," Fed. R.

Dismiss

at

Defendants

to

allege

Civ. P.

2,
do

facts

12(b)(6),

54

ECF
not

No.

25

contend

"upon

Defs.'

(capitalization
that

which

Plaintiffs

relief

can

be

and because the result would

be the same under either Rule 12(b)(1)

or Rule 12(b)(6),15 the

Court

"determine

proceeds

Complaint

'fails

jurisdiction

161728,
Cir.

under

can

at *6

1982));

Rule

12(b)(1)

to

allege

facts

be

based.'"

to
upon

Haley,

(quoting Adams v. Bain,

see also Limehouse,

which
2012

whether

subject

U.S.

549 F.3d at 332.

matter

Dist.

697 F.2d 1213,

the

LEXIS

1219

(4th

As discussed,

Plaintiffs only surviving claim under the ADEA is a disparate
treatment claim of wage discrimination,

as

exhaust

with

his

administrative

disparate

impact

Thus,

Court

the

claims

or

considers

remedies

claims
only

Plaintiff failed to
respect

the

regarding

whether

to

policy.

Plaintiff

PTR

any

sufficiently

alleges wage discrimination under the ADEA based upon a theory
of disparate treatment.
The ADEA forbids

any

individual

conditions,

or

individual's
original)

an

with

employer from discriminating "'against

respect

privileges

age.'"

(quoting

Hill,
29

to

of

compensation,

employment,

354

U.S.C.

his

F.3d
§

623

at

because

283

terms,
of

such

(emphasis

(a)(1)).

in

Plaintiff

sufficiently pleads that he is a member of a protected class and
that

members

outside

the

protected

class

earn

a

higher

salary

15 "When the defendant makes a facial challenge to subject matter
jurisdiction under Rule 12(b)(1), the plaintiff is afforded 'the same
procedural protection as he would receive under a Rule 12(b) (6)
consideration,' such that 'the facts alleged in the complaint are
assumed

to

be

true.'"

Haley,

2012

U.S.

Dist.

LEXIS

161728,

(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
55

at

*6

than him.
age

is

However,

the

App'x at
facts

cause

352-53

in

Plaintiff fails to factually allege that his

of

his

lower

salary.

See

Carpenter,

107

F.

(finding plaintiff "failed to allege sufficient

support

of

his

ADEA

claim

to

defeat

a

motion

to

dismiss" where he "did nothing more than state that he was in a

protected

class

decisions").

and

that

Indeed,

he

suffered

Plaintiff's

ADEA

adverse

claim

is

employment

wholly

based

upon "statistical analyses of the sample data," PL's Second Am.

Compl.

SI 16,

Circuit

that

ECF No.

23, and

"statistics

it is well-settled in the Fourth

alone

cannot

establish

case of individual disparate treatment."
Stores, Inc.,

158 F.3d 742, 761 (4th Cir.

a

prima

facie

Lowery v. Circuit City
1998).

Recognizing that a plaintiff is required to "state all the
elements

added),

of

[his]

Plaintiff

sufficiently

claim,"

insists

"allege[s]

Bass,

that

facts

324

his

to

F.3d

Second

at

765

(emphasis

Amended

Complaint

support

a

conclusion

of

intentional discrimination," PL's Br.

in Opp'n at 2, ECF No.

28

(discussing

claims).

as

discussed

Plaintiff's
with

Plaintiff's
engage

respect

allegations

with

Title

Plaintiff

to

VII

Plaintiffs

regarding
in

his

Title

Defendants'

salary

battle

right to relief above the speculative level."
at

555.

Because

"'discriminatory

Plaintiff

motive,'"

fails

which
56

to

is

However,
VII

claims,

unwillingness
fail

to

Twombly,

sufficiently

"'critical'

in

to

"raise

a

550 U.S.

allege

any

disparate

treatment cases," Merritt,
Paper,

507

U.S.

at

610),

615 F. Supp.

2d at 445

the Court cannot

reasonably infer that

Plaintiff received a lower salary "because of
354

F.3d

at

283.

Accordingly,

(quoting Hazen

Plaintiff

has

[his age]," Hill,
failed

"an ongoing violation of federal law," Verizon Md.,
645,

and is

proceeding

therefore precluded by

with

his

ADEA

claim.

the

to

allege

535 U.S.

Eleventh Amendment

Plaintiff's

ADEA

at

from

claim

is

therefore DISMISSED for lack of subject matter jurisdiction.
5.

The

Court

Plaintiff's

alleges

next

Retaliation

considers

Defendants'

retaliation claim.

the

same

arguments

Defendants assert that

retaliatory

acts

that

the

Court

"rejected ... as not stating a prima facie case."

Supp. Mot. to Dismiss at 6, ECF No. 25.
contend,

because

"fail[ed]

EEOC"

to

with

the

exhaust

respect

to

again be dismissed."

Court

also

found

his

retaliation

that

administrative

As

Plaintiff

previously
Defs.' Br.

Furthermore, Defendants

his

Id.

surrounding

Plaintiff

remedies

claim,

such

previously noted,

had

before

the

claim "must

Plaintiff did

not discuss his retaliation claim in his responsive brief.

a. Subject Matter Jurisdiction/Exhaustion of Administrative
Remedies

In
observed

its
that

February

13,

"Plaintiff

2014

did

the EEOC form," and did not

not

Opinion
check

and

the

Order,

the

'Retaliation'

Court
box

on

factually "'raise anything remotely

57

resembling a claim for retaliation in his charge to the EEOC"
Earl,

2014

Carfax,

U.S.

Inc.,

Dist.

Dist.

120

LEXIS

LEXIS

18583,

at

Empl.

Prac.

Cas.

Fair

170419,

at

*15

*27

(E.D.

(quoting Wright

(BNA)
Va.

1723,

Dec.

2013

3,

v.

U.S.

2013)).

Acknowledging that "'a plaintiff may raise [a] retaliation claim
for

the

first

time

in

federal

court'

when

the

retaliation

is

'for filing the first charge,'" idL at *25 (quoting Nealon, 958
F.2d

at

general

590),

rule

occurred

the

Court

does

not

before

noted

apply

the

that

when

"this

'the

plaintiff

alleged

filed

an

complaint,'" id^ (quoting Wright, 2013 U.S.
at

*13.

Recognizing

that

it was

"at

exception

"acts

claim[],"

occurring

id.

after

at

the

charge with the EEOC," id.

*33,

retaliation

administrative

least

conceivable
support his

particularly with

[December

at *28,

8,

the

Dist. LEXIS 170419,

Plaintiff could set forth sufficient facts to
retaliation

to

2011]

that
. . .

respect

filing

of

to

his

the Court granted Plaintiff

leave to again amend his Complaint.
Plaintiff's

allegedly

Second Amended Complaint

retaliatory

acts

alleged

in

Complaint.

As discussed in its February

Order,

Court

the

does

not

consider

lists

the

the

same

Plaintiff's
13,

seven

Amended

2014 Opinion

acts

that

and

"occurred

before the plaintiff filed an administrative complaint," Wright,
2013

U.S.

failure

"to

Dist.

LEXIS

exhaust

170419,

at

administrative
58

*13,

remedies

because

Plaintiff's

. . . deprives

the

[Court]
551

of

F.3d

subject matter
at

300.

jurisdiction over

However,

the

Court

the

will

claim,"

again

Jones,

address

the

remaining acts allegedly occurring after December 8, 2011.
b.

"To
must

state a prima

show

that

activity,

such

employer

(1)

acted

protected
adverse

Cir.

Sufficiency of Pleading

as

action."

(4th Cir.

the

filing

was

case

plaintiff

engaged

in

with

against

v.

the

connected

Baltimore,

(quoting Beall v.

the

(2)

the

and

(3)

the

the employer's

F.3d

Abbott Labs.,

protected

EEOC;

to

648

a plaintiff
a

plaintiff;

causally

Okoli

of retaliation,

a complaint

adversely

activity

2011)

facie

216,

223

130 F.3d 614,

(4th

619

1997)).

"An adverse

action

is

one

that

'constitutes a significant

change in employment status, such as hiring, firing, failing to
promote,

reassignment

with

significantly

different

responsibilities, or a decision causing a significant change in
benefits.'"

Cir. 2011)
761

Hoyle v.

retaliation

an

The
context,

employee's

Supreme
an

Court

adverse

"terms

or

Burlington N. & Sante Fe Ry. v.

However,

LLC,

650

(quoting Burlington Indus, v.

(1998)).

affect

Freiqhtliner,

"a

plaintiff

'must

held

employment

conditions

that

337

that,

of

548 U.S.

a

the

need

action

in

not

employment."

53,

70

reasonable

(2006).

employee

would have found the challenged action materially adverse,
59

(4th

Ellerth, 524 U.S. 742,

has

White,

show

F.3d 321,

which

in this context means it well might have "dissuaded a reasonable

worker from making or supporting a charge of discrimination."'"

Id. at

68

(D.C.

(quoting Rochon v. Gonzales,

Cir.

2006))).

retaliation
. . .

it

The

plaintiff

must

is

important

Id.

harms."

Supreme

(emphasis

prove

to

438

F.3d 1211,

Court

explained

that

adversity

because

"material

separate

significant

in original).

An

1217-18

from

a

trivial

employer's action is

not materially adverse if it amounts to "petty slights or minor
annoyances that often take place at work and that all employees

experience."
"from

all

Id.

retaliation,

injury or harm."
Here,
most,

three

Plaintiff

allegedly

first

the

sure,

but

from

Second

employee

is not

retaliation

Amended

retaliatory

claims

to

that

present

that

of

omitted,
handbook."

2011,

without
Id.

"he

acts

an

was

oral

an

asserts,

at

occurring

denied

(all

report,

"his

Second,

reports

explanation
Third,

to

after,

as

Director

of

Board

Human

from

the

and

Senate

PL's Second

Visitors

BOV

were

meeting

on July 3, 2012,

Atwater,

Resources,
60

2011.

2011,

Faculty

of

Plaintiff claims that,

Dr.

of

and

Plaintiff alleges that, in

the

. . .

"the president of the University,
University

protected

produces

Complaint

at meetings of the Board of Visitors."

Am. Compl. SI 21, ECF No. 23.
December

an

his filing an EEOC charge on December 8,

right

president,

be

Id. at 67.

Plaintiffs

resulting from,

2012)

To

and

as well as the
the

Board

of

Visitors

refused

...

to

meet

with

respond to his communications."
"[t]hese

actions

had

the

Id.16

effect

of

job,

operate

public

in

pervasive

an

ridicule,

intimidation."

that
Id.

was

of his

under

in White,

that
Nor

he

adverse

he was

any

of

insecurity in

forced

him

to

and

filled

with

asserts

that

to

significantly alter
an uncomfortable and

Id.
retaliation

standard

68

conflicts

(noting
at

supervisors

work

and

employment action.

change

Defendants'

from making

at

relaxed

disciplined,

any

suffered

would

Id.

an

that

worker

more

to

set

forth

none of the acts of which Plaintiff complains rise to

the level of

allege

the

to

further

creating

threatening working environment."
Even

and

Plaintiff

employment,

even

Plaintiff

of

hostile

the "insult" was "sufficiently severe as
the conditions

the

feelings

belittlement,

environment

or

Plaintiff alleges that

subjecting

public embarrassment and humiliation,
his

[Plaintiff],

or

in

or that
his

that
that

a

"'courts
generate

co-workers'

are

he was

have

of

benefits.

a

reasonable

discrimination."

held

antipathy'

or

or

"dissuade[]

charge

not

reassigned,

compensation

actions

supporting

Plaintiff does not

that
and

actionable"

personality
'snubbing

(quoting

by

1

B.

16 Plaintiff additionally asserts that "a tenured faculty member
. . .

(who

had

a

close

association

and

ties

with

Dr.

Earl

and

his

efforts) was summarily fired, in 2012," causing "the intimidation
level" to rise and "the faculty morale" to sink.
PL's Second Am.
Compl. SI 21, ECF No. 23.
Plaintiff does not allege that the firing of
his associate was a retaliatory act against Plaintiff, nor does the
Court consider it as such in the absence of such a
61

factual assertion.

Lindemann
ed.

&

P.

1996)));

F.3d

180,

Grossman,

Employment

see also Honor v.

189

(4th

Cir.

Discrimination

Booz-Allen

2004)

&

(finding

Law

that

(3d

Inc.,

Hamilton,

669

383

neither

"being

excluded from certain meetings and emails" nor being "ostracized

by

certain

employment
(4th

employees"
action");

Cir.

"to

Brockman

2007)

[employee's]

rose

(finding

phone

v.

the
Snow,

that

calls

level
217

F.

"fail[ing]

. . .

of

an

App'x

201,

206

respond

to

do[es]

adverse

to

not

approach

materiality").
It

is

obvious

that

Plaintiff

believes

that

Defendants

treated him poorly because of "his advocacy for faculty rights."
PL's Second Am. Compl.

SI 21, ECF No. 23.

However,

Plaintiff

simply has not alleged any materially adverse employment actions
taken against him in retaliation for his advocacy,
simply

"does

American
because

not

set

workplace."
the

Court

forth
White,

lacks

a

general
548

subject

U.S.

matter

civility
at

and the law

code

68.

for

the

Accordingly,

jurisdiction

over

the

allegedly retaliatory acts occurring before Plaintiff filed his
EEOC charge on December 8,
allege
8,

any adverse

2011,

in

2011, and because Plaintiff fails to

employment actions occurring after

retaliation

for

his

participation

in

activity, Plaintiffs retaliation claim is DISMISSED.

62

a

December
protected

E. Class/Collective Action

The

Court

Plaintiff
class

has

finally
failed

action under

Defs.'

Reply

surviving

Br.

to

timely

Federal

at

claim

considers

is

1,

his

"move

Rule[]

ECF

No.

EPA

Defendants'
for

of Civil

29.

claim,

assertion

certification
Procedure,

as

a

Court

Rule

23."

Plaintiff's

Because

the

that

only

discusses

only

whether Plaintiff can proceed on his EPA claim as a collective
action.

As
motion

Defendants
for

point

certification

Plaintiffs

EPA

Plaintiffs

claim

Second

out,
of

his

is

Amended

Plaintiff

has

collective

the

single

Complaint,

provision)."
29

U.S.C.

like

the

§

yet

filed

action.

surviving

Plaintiff

assert a collective action only on that
U.S.C. § 216(b))

not

claim,

Because

claim

may

in

seek

to

"pursuant to 29

(the Fair Labor Standards Act collective action

PL's Second Am. Compl. SI 8, ECF No. 23.
216(b)

one

a

set

does

out

in

not

mandate

Federal

a

Rule

certification

of

Civil

Although
procedure

Procedure

23,

a

plaintiff "must first seek conditional certification and then if

granted, discovery is conducted to allow the court to determine
if final

certification is appropriate."

Resorts,

Inc.,

475

Although

"the

Fourth

conditional

Plaintiff

F.

Supp.

Circuit

certification

must

2d

provide

in

at

557,

has
an

63

558

not

FLSA

least

Choimbol v.

"'a

n.l

settled
action,"

modest

Fairfield

(E.D. Va.

on
it

a

2006).

test

appears

factual

for
that

showing

sufficient

to

demonstrate

that

[he]

and

potential

plaintiffs

together were victims of a common policy or plan that violated
the law.'"

544, 548

Purdham v.

(E.D. Va.

Fairfax Cnty.

2009)

Pub.

Schs.,

(quoting Choimbol,

629 F. Supp.

475 F.

Supp.

2d

2d at

563) .

Plaintiff

concedes

that

his

in support of his allegations

"choice

[of]

of

comparators

to

aid

an initial individual case

for discrimination as it pertained to himself" was obtained from
the

Mathematics

Department,

"a

sub-population

population of NSU professors."
No.

28.

PL's Br.

of

the

larger

in Opp'n at 1-2, ECF

To obtain conditional certification,

however,

Plaintiff

will likely need to present facts far beyond his own department
"to

support

[his]

company-wide

allegations

policy

resulting

Bernard v. Household Int'l,

Va. 2002).
a

Accordingly,

collective

action

on

should file a motion
29 U.S.C.

Court

Inc.,

potential

FLSA

231 F. Supp.

[have]

a

violations."

2d 433,

435

(E.D.

his

EPA

claim,

for conditional

he

is

advised

certification,

that

he

pursuant

to

§ 216(b).

the

reasons

Dismiss is GRANTED,
the

in

defendant [s]

if Plaintiff still wishes to proceed as

IV.

For

that

DISMISSES

and ADEA age

stated

IN PART,

CONCLUSION

above,

and DENIED,

Plaintiff's

discrimination

Defendants'

Title

claims
64

for

Third

IN PART.
VII

race

lack

of

Motion

to

Specifically,
discrimination

subject

matter

jurisdiction.

The

discrimination

upon

which

claim

can

with

before

December

for

to
8,

the

The

Court

to

DENIES

The
lack

and

Title

VII

state

to

a

Court

of

allegedly

2011,

retaliation claim for failing to

can be granted as

fails

granted.

claim

respect

Plaintiffs

Plaintiff

be

retaliation

jurisdiction

DISMISSES

because

relief

Plaintiffs

occurring

Court

claim

DISMISSES

subject

matter

retaliatory

DISMISSES

sex

acts

Plaintiffs

state a claim upon which relief

the acts occurring after December 8, 2011.

Defendants'

Third

Motion

to

Dismiss

with

respect to Plaintiff's EPA disparate treatment claim.

Plaintiff

is

supported

ADVISED

to

file

a

motion

for conditional

behalf

of

treatment

a

class

in

clearly-written

and

certification if

he

a

collective

to all
IT

wishes

to proceed on

on

EPA

his

disparate

claim.

The Clerk is REQUESTED
Order

action

factually

IS

SO

counsel

of

to

send a copy of

this Opinion and

record.

ORDERED.

/./NfaMark
UNITED

Norfolk,

Virginia

June 3^_, 2014

65

STATES

S.

Davis

DISTRICT

JUDGE