Grant v. Bank of America, N.A. et al

Filing 13

MEMORANDUM OPINION and ORDER that Defendants' Motion to Dismiss Counts I and II of the Complaint is DENIED. Furthermore, Plaintiff is ADVISED she retains the right to file an amended complaint, without leave of court, pursuant to Federal Rule of Civil Procedure 15(a). Signed by District Judge Henry C. Morgan, Jr on 10/18/13. (afar)

IN THE UNITED STATES DISTRICT COURT \~
FOR THE EASTERN DISTRICT OF VI *GIH
Norfolk Division

SONYA GRANT,

CLERK, U.S. DISTRICT COURT
NORrOI K. VA

Plaintiff,

v.

Civil Case No. 2:13-cv-342

BANK OF AMERICA, N.A., ET AL.,
Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants Bank ofAmerica, N.A. ("BOA") and Stacy
Klcvay's (collectively, "Defendants") Motion to Dismiss ("Motion"), Doc. 7, for failure to state a
claim upon which relief can be granted.1 See Fed. R. Civ. P. 12(b)(6). After careful examination of

the parties' briefs and the record, this Court has determined that oral argument is unnecessary
because the facts and legal arguments are adequately presented in the parties' filings, and the
decisional process would not be significantly aided by ahearing. For the foregoing reasons,
Defendants' Motion to Dismiss is DENIED.

I. Factual History and Procedural Background
A.

Factual History2

Plaintiff Sonya Grant ("Plaintiff), aBlack female, worked for BOA as aVice President and

banking center manager. Sec Compl. 1f l,8,ECFNo. 1(hereinafter "Doc. 1"). In 2009, BOA
' Initially, Defendants also moved to dismiss under Federal Rules ofCivil Procedure 12(b)(l)-Lack ofSubject Matter
J
In considcrmg amotion to dismiss, [the court] acceptfs] as true all well-pleaded allegations and viewfs] the comphint
m light most favorable to theFplaintiff." mj (dth a,- loo-m gyj <- .417 F.3d 41~8, 420 (4th STSw5) S
the Labs.. Inc. v. Matkari 7 -\A inn Venkatraman vrfi tk;- fag.
Mvlan
•
,
.
annjipmiig
Junsd.Gt.on; however, mthe.r Reply, Doc. 11, they withdrew this basis for dismissal

1

rated Plaintiffs performance as "Meets Expectations" at the end of every quarterly and year-end
performance review. Doc. 1,110. Defendant Klevay, aWhite female, was assigned as BOA's

Senior Vice President on February 1, 2010, making her Plaintiffs direct supervisor, Id at 1[ If 1112. Thereafter, Plaintiffcontends she was denied the same resources as other, similarly situated
White and Asian managers; was disparately disciplined for passing performance review scores; and
was ultimately terminated rather than being reassigned, as other managers had been when their
performance was at issue. Id. at 1 ]\ 13-14.

Specifically, Plaintiff complains that by April 2010, Defendants fired six ofthe fifteen to

twenty banking associates under her direction, failed to provide her center with experienced
replacements, and disregarded her concerns about the effects ofhaving ahigh number of

inexperienced personnel on site. Id at f 1[ 19-20. By contrast, Plaintiffclaims BOA provided

other, similar banking centers with both agreater number and more experienced employees. ]d at f
19.

Additionally, Plaintiff believes that BOA disciplined her on mere pretexts in order to give

cause to terminate her. On March 29, 2010, Plaintiff received awritten warning for her passing

assessment score.3 She was then issued two more written warnings concerning her performance in
rapid succession on April 64 and June 1, 2010, id at J18,1| 20, before she was terminated on July
23, 2010. PI. Mem. In Opp'n Mot. to Dismiss, ECF No. 10 at 1(hereinafter "Doc. 10."). Plaintiff

contends that her termination equates to disparate treatment, as two other White BOA managers
received transfers or demotions rather than termination as a result oftheir performance issues. Doc.
1 at %
20.

^A "passing score" is defined as "5" according to BOA policy, which is what the Plaintiffreceived based upon the
Banking Center International Control Review assessment tool. SeeDoc. 1at *! 16-17.

Plaintiffasserts that this "warning" cites aBOA policy requiring continuous "lobby leadership" that does not exist

Doc. I at UU 13, 14.

B.

Procedural History

As required before filing suit, Plaintiff filed an administrative Charge of Discrimination with

the Equal Employment Opportunity Commission ("EEOC") against BOA. Id at U The EEOC
8.
issued aNotice of Right to Sue letter to Plaintiffand within ninety days, on June 18, 2013, Plaintiff
filed suit in this Court. Id In Count Iofher Complaint, Plaintiffclaims Defendant BOA5 violated
Title VII of the Civil Rights Act of 1991, 42 U.S.C. §2000e *sec,., by racially discriminating
against her in denying her "the resources provided to other similarly situated employees outside the
protected class" and terminating her employment rather than demoting her. Doc. 1at ffi[ 23-24. In
Count II ofher Complaint, Plaintiffclaims that Defendants violated 42 U.S.C. §1981 by
"intentionally intcrfere[ing] with Plaintiffs contract ofemployment. .." as described above,
"because oftheir discriminatory animus towards her race." Id at fflf 30-32.
On July 1, 2013, Defendants filed the instant Motion with asupporting brief. Doc. 8.
Plaintiff responded in opposition on July 31, 2013, Doc. 10, and also filed aCross Motion to

Amend/Correct the Complaint ("Motion to Amend"). Doc. 9. Defendants replied on August 6,
2013, Doc. 11, but did not oppose Plaintiffs Motion to Amend. As the parties have submitted all
appropriate filings, this matter is now ripe for disposition.
II. Legal Standards

A.

Motion to Dismiss

Defendants seek to dismiss Count Iand II ofthe Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6), which permits adefendant to seek dismissal based on the plaintiffs
"failure to state aclaim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Amotion to
While Plaintiffs Complaint, See_Doc. 1, is unclear that she alleges only BOA violated Title VII ratW rh.n h„rf,

dismiss for failure to state a claim should be granted ifthe complaint does not allege "enough facts
to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twomblv, 550 U.S. 544,
570 (2007). A 12(b)(6) motion tests the sufficiency of a complaint and "does not resolve contests

surrounding the facts, themerits of a claim, or the applicability of defenses." Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Accordingly, a court should "assume the truth of

all facts alleged in the complaint and the existence ofany fact that can beproved, consistent with

the complaint's allegations." Eastern Shore Markets. Inc. v. J.P. Associates Ltd. Partnership, 213
F.3d 175, 180 (4th Cir. 2000). Although the truth of the facts alleged is assumed, courts arc not
bound by the "legal conclusions drawn from the facts" and "need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments." Id.

A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal

Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), so as to "give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic. 550 U.S. at

555 (quoting Conlev v. Gibson. 355 U.S. 41, 47 (1957)). Fair notice is provided by setting forth
enough facts for the claim to be "plausible on its face" and "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)." Id. at 555, 570 (internal citations omitted). "Rule 12(b)(6) does not countenance .

.. dismissals based on ajudge's disbelief ofacomplaint's factual allegations." Id at 555 (quoting
Neitzke v. Williams, 490 U.S. 319, 327, (1989). A complaint may, therefore, survive a motion to

dismiss "even ifit appears 'that a recovery is very remote and unlikely.' " Id. (quoting Scheuer v.
Rhodes. 416 U.S. 232, 236 (1974)).

B.

Leave to Amend

Federal Rule of Civil Procedure 15(a) provides that "[a] party may amend its pleading once
as a matter ofcourse . . . before being served with a responsive pleading." A motion to dismiss is

not a"responsive pleading" within the contemplation ofRule 15(a). Fed. R. Civ. P. 7(a); Vanguard
Military Equip. Corp. v. David B. Finestone Co.. 6 F. Supp. 2d 488, 492 (E.D. Va. 1997) (a motion
is not a responsive pleading); Wallace v. Chrysler Credit Corp.. 743 F. Supp. 1228, 1236 (W.D. Va.
1990) (a motion to dismiss is not responsive pleading for puiposes ofRule 15).
HI. Analysis

A.

Defendant's Motion to Dismiss Counts I and II

Defendants assert that Plaintiffs claims should be dismissed as Plaintiff has failed to allege
sufficient facts to state a claim against Defendants under Title VII or Section 1981. Def. Mot. to

Dismiss, ECF No. 8(hereinafter "Doc. 8."). Title VII prohibits racial discrimination against
currently employed and prospective employees, see 42 U.S.C. § 2000e, and Section 1981 ensures
that all citizens, regardless of their race, have theright "to make and enforce contracts .. . as is

enjoyed by white citizens." § 1981(a); see also CBOCS W.. Inc. v. Humphries. 553 U.S. 442, 445
(2008).

In order to state a cause of action on a Title VII disparate treatment claim, Plaintiff must
plead facts demonstrating that defendants treated her differently because ofher race inone of two
ways: (1) by producing direct evidence that her race was a factor in BOA's decision to terminate

her; or (2) by proffering indirect evidence that could reasonably create an inference of

discrimination. See Adams v. Univ. of N. Carolina-Wilmington. 640 F.3d 550, 558 (4th Cir. 2011).
To state acause ofaction under Section 1981, Plaintiff must plead facts demonstrating: (1)
that Plaintiff is a member ofa racial minority; (2) that there was intent to discriminate on the basis
ofrace; and (3) that the discrimination concerned one ormore of the activities enumerated in the
5

statute. See e.g., Pena v. Porter, 316 Fed. Appx. 303, 316 (4th Cir. Mar. 13, 2009); Mian v.
Donaldson. Lufkin &Jenrettc Sec. Corp.. 7 F.3d 1085, 1087 (2d Cir .1993).

Here, Defendants argue that Plaintiffs Complaint is insufficient because it does not provide

facts demonstrating direct discrimination, and therefore, is required to allege facts supporting each
element ofthe burden-shifting framework set out in McDonnell Douglas Corporation v. Green. 411

U.S. 792 (1973).6 See Doc. 8at 6. Under the McDonnell Douglas framework, aplaintiffmust
allege that (1) she is amember ofaprotected class; (2) she was qualified for her job and her job

performance was satisfactory; (3) she suffered an adverse employment action; and (4) similarly
situated employees not in the protected class received more favorable treatment. Johnson v. Ouin

Rivers Agency for Cmty. Action. Inc.. 140 F. Supp. 2d 657, 663 (E.D. Va. 2001) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, Defendants contend that Plaintiff

fails to provide any facts that demonstrate the second and fourth prongs of the McDonnell Douglas

approach—namely that Plaintiffsjob performance was satisfactory, and that other, non-protected
BOA managers received more favorable treatment. Doc. 8 at 7-10.

Defendants' argument lacks merit. Plaintiff provides facts that show her performance was
satisfactory when she states she was promoted to Vice President in 2008, received "meets
expectations" reviews by BOA in 2009, and earned a "passing score" on the BOA assessment tool.

Doc. 1at fflj 9, 10, 16. Plaintiff was given three written warnings concerning her performance in a

relative short time frame in 2010, after Defendant Klevay was made her direct supervisor. Id at J
3. Plaintiff argues that that the warnings were merely "pretextual" as she was an employee of
eighteen years who had received a promotion to Vice President two years before her termination,
and had received "meets expectations" reviews just seven months prior. Id

' The McDonnell Douglas approach applies equally to race discrimination claims under Title VII and Section 1981 See
Hughes v. Navy Fed. Credit Union. 2012 U.S. Dist. LEXIS 1302 (E.D. Va. Jan. 4, 2012).

B.

Leave to Amend

Plaintiffhas requested Leave to Amend if the Court grants Defendants' Motion to Dismiss.

However, as Defendants' Motion to Dismiss is denied, Plaintiffwill have the opportunity to amend
her Complaint as a matter of right, (without leave of court), since Defendants' Motion is not
considered a responsive pleading.
IV. Conclusion

For the reasons stated above, the Court FINDS that Plaintiff alleges sufficient facts to

support her claims under Title VII and Section 1981. Accordingly, it is hereby ORDERED that
Defendants' Motion to Dismiss Counts I and II of the Complaint is DENIED. Furthermore,

Plaintiff is ADVISED she retains the right to file an amended complaint, without leave of court,
pursuant to Federal Rule of Civil Procedure 15(a).

The Clerk is REQUESTED to mail a copy of this Order to all counsel of record.
It is so ORDERED.

M

Henry Coke Morgan, Jr.

lior United States District JudgS
HENRY COKE MORGAN, JR.

m

SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, VA

Date: October jo, 2013