Pressley v. City of Norfolk, Virginia

Filing 15

ORDER granting in part and denying in part 4 Motion to Dismiss. The Court GRANTS the Motion IN PART, DISMISSING Count I for failure to exhaust administrative remedies. Signed by District Judge Henry C. Morgan, Jr on 9/27/17. (bpet, )

FILED
SFP 2 7 Ml
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

CLERK, U.S. DISTRICT COURT
I^RFOLK, VA

Norfolk Division

VINCENT E. FRESSLEY,
Plaintiff,
V.

Civil Action No. 2:17cv264

CITY OF NORFOLK, VIRGINIA,
Defendant.

OPINION & ORDER

This matter is before the Court pursuant to Defendant City of Norfolk, Virginia's

("Norfolk's" or "Defendant's") Motion to Dismiss Count I and Count III of Plaintiff Vincent E.
Pressley's ("Pressley's" or "Plaintiffs") Complaint ("Motion"). Doc. 4. Norfolk also filed a
request for a hearing on the Motion. Doc. 11. The Court FINDS that no hearing is necessary

because the proper disposition of the Motion is clear from the briefs. For the reasons stated
herein, the Court GRANTS the Motion IN PART, DISMISSING Count I for failure to exhaust
administrative remedies.

I.

A.

BACKGROUND

Factual Allegations

This action arises from the alleged wrongful termination of Pressley, an African
American former city maintenance mechanic at Norfolk's Moore's Bridge Water Treatment

Facility ("Moore's Bridge"). ^

Doc. 1 ("Compl."),

11-12. Pressley began working at

Moore's Bridge on April 1, 1992. Id. 111. In early 2015, he began applying for a Meter
Mechanic position in the department. Id H13. When he inquired regarding the status of his
applications, the Meter Mechanic Supervisor informed him that the supervisor had never

received any of the applications from human resources. Id Subsequently, on October 7, 2015,
Pressley received a disciplinary notice for "leaving his work area without permission to purchase
lottery tickets for co-workers." Id. Tl 14. He alleges that this notice was false because his
supervisor instructed him to purchase the lottery tickets. Id. ^ 15. He further alleges that
Caucasian and Filipino coworkers left the work area during the same time period without
permission and with company vehicles but were not punished. Id. ^ 16.

Pressley alleges that this disciplinary action was consistent with many racially
discriminatory practices.

id

17-24.

Such practices include passing over African-

American employees for promotions and forcing African-American employees to pick up trash

by hand while Caucasian employees used tools. Id

17-18. Supervisors Marvin Burheim

("Burheim") and Billy Branch ("Branch") also allegedly used racial epithets, with Branch using
one at Pressley in particular. Id H19. Burheim also referred to the job site as a plantation, to

Pressley's vocal objection, which led to "more severe" treatment of Pressley by Burheim. Id

111120-21.

In addition, another employee named Michael Robinson reported the racial

discrimination to Linda Balance in the human resources department and was shortly thereafter

fired for "abandoning his job." Id

22-23. Pressley seeks damages for three (3) claims:

hostile work environment, retaliatory discharge, and racial discrimination. Id Yi 25-39.
B.

Procedural History

Pressley previously filed two (2) Equal Employment Opportunity Commission ("EEOC")
charges on October 19, 2015 and on December 2, 2015, respectively.

Compl.

5-8. On

February 28, 2017, the EEOC issued a dismissal and notice of right to sue on the second charge.

Id H8. Pressley filed his Complaint in this Court on May 17, 2017. Compl. On June 15, 2017,
Norfolk filed the instant Motion. Doc. 4. Norfolk also filed an answer. Doc. 6. Pressley

responded in opposition to the instant Motion on June 28, 2017. Doc. 8. Norfolk replied on July
5, 2017. Doc. 10. The Final Pretrial Conference ("FPTC") is scheduled for February 15, 2018,
and trial is scheduled for February 27, 2018. Doc. 12.

II.

LEGAL STANDARD^

Under Federal Rule of Civil Procedure 12(b)(1), a court may dismiss a claim against a

defendant for lack of subject matter jurisdiction. Federal district courts are courts of limited
subject matter jurisdiction. Exxon Mobile Corp. v. Allaoattah Servs.. Inc., 545 U.S. 546, 552
(2005).

Accordingly,

"[t]he

objection that

a

federal

court

lacks

subject-matter

jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the
litigation...Arbaueh v. Y & H Corp.. 546 U.S. 500, 506 (2006) (citing Fed. R. Civ. P.

12(b)(1)). The court may accept evidence on any disputedjurisdictional facts without converting
a motion to dismiss into a motion for summary judgment.

Richmond. Fredericksburg &

Potomac R. Co. v. United States. 945 F.2d 765, 768 (4th Cir. 1991). The plaintiff has the burden
of proof on subject matter jurisdiction. Id.
III.

ANALYSIS

Norfolk seeks dismissal of two (2) of Pressley's three (3) claims for relief for failure to
exhaust administrative remedies.

"In any subsequent lawsuit alleging unlawful employment

practices under Title VII, a federal court may only consider those allegations included in the
EEOC charge." Balas v. Huntington Ingalls Indus.. Inc.. 711 F.3d 401, 407 (4th Cir. 2013)

(citing Evans v. Techs. Applications & Serv. Co.. 80 F.3d 954, 962-63 (4th Cir. 1996)). "Only
those discrimination claims stated in the initial charge, those reasonably related to the original

complaint, and those developed by reasonable investigation of the original complaint may be
' Norfolk states that it seeks dismissal under Rule 12(b)(1) and Rule 12(b)(6), see Doc. 4, but its memorandum in
support of its Motion only offers jurisdictional arguments,
12(b)(6).

Doc. 5. Thus, the Court need not address Rule

maintained in a subsequent Title VII lawsuit." Jones v. Calvert Grp.. Ltd., 551 F.3d 297, 300

(4th Cir. 2009) (quoting Evans. 80 F.3d at 963). A plaintiffhas failed to exhaust administrative

remedies where, for example, the charge only alleges retaliation and the complaint adds racial
discrimination.

id at 301; see also Svdnor v. Fairfax Ctv.. Va.. 681 F.3d 591, 594 (4th Cir.

2012) (citing Jones). In contrast, a plaintiffs claimsare reasonably related to their initial charge
where, for example, both allege discrimination in promotion, but the complaint discusses a
different aspect of the promotional system, or both allege retaliation, but the complaint discusses
different retaliatory conduct. S^ Svdnor. 681 F.3d at 594 (citing Chisholm v. U.S. Postal Serv..
665 F.2d 482, 491 (4th Cir. 1981) and Smith v. First Union NatM Bank. 202 F.3d 234, 247 (4th
Cir. 2000), respectively).

Two EEOC charges are at issue here. The first charge states as follows:
I. I have been employed with this company since April 1992, as a Maintenance
Mechanic I. Throughout my tenure, I have received above average performance
evaluation. Since the beginning of 2015, I have applied for Meter Mechanic
position several times, a position I held until 2004. I was approached by Meter
Mechanic Supervisor and told that they never saw my application that it must
have been pulled by Human Resources or Assistant Director, Eric Tucker. On
October 7, 2015,1 received a disciplinary notice for leaving the work area without
permission to purchase lottery tickets for supervisors and fellow co-workers.
Several other employees leave the work area in the city vehicle and never receive
any disciplinary action.

II. I never received a reason from the Assistant Director on why my application
was not selected. The reason I was given for the disciplinary action was leaving

the plant without permission; insubordination; use of offensive language; conduct
unbecoming and violation of the business conduct policy.

III. I believe I was disciplined and denied assignment because of my race, Black
in violation of Title VII of the Civil Rights Act of 1964, as amended.
Doc. 5, Ex. 1 (the "October Charge") at 1. The second charge states as follows:
I was hired as a Maintenance Mechanic I on April 1, 1992. I filed a charge of
discrimination in October 2015. On November 2, 2015 I was discharged. The

White and Filipino employees leave the work site without permission or
authorization and are not disciplined.

The reasons given for my discharge are leaving duty area without permission,
insubordination and neglect of duty.

I believe I was discharged because of my race, Black and in retaliation for filing a
prior charge of discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended.

Id.. Ex. 2 (the "December Charge") at 1. Neither Party disputes that Pressley is suing on the
second charge. See generallv Docs. 5, 6.

The December charge discloses two (2) clear claims: that Pressley "was discharged
because of [his] race" and that Pressley "was discharged... in retaliation for filing a prior
charge of discrimination."

December Charge at 1. Norfolk argues that these allegations

cannot reasonably extend to the "hostile work environment" and "demeaning, harsh and racially
adverse employment conditions" alleged in Count I (Hostile Work Environment) and Count III
(Racial Discrimination) of Pressley's Complaint. Doc. 5 at 5-6. Pressley responds that the
December Charge addresses both retaliatory discharge and racial discrimination and that "the
claim of hostile work environment based upon race was reasonable [sic] related to the EEOC's
investigation of racial discrimination (and was in fact investigated)." Doc. 8 at 4. He also
observes that he addressed the broader work environment issues in his written rebuttal brief to

the EEOC. Id at 2 (citing Id, Ex. C.) Norfolk replies that Pressley has not alleged that he sent
the reply brief to Norfolk, nor does the fact of the letter disclose such, and thus, a reasonable

investigation would not look beyond the discrimination related to his termination. Doc. 10 at 2.

Pressley has failed to prove exhaustion of remedies as to Count I (Hostile Work
Environment), and thus, has also failed to prove this Court's jurisdiction over that claim. Private
letters to the EEOC cannot amend formal charges. Balas v. Huntineton Inealls Indus.. Inc.. 711

F.3d 401, 408 (4th Cir. 2013). The law appears unclear as to whether a private letter copied to
an employer would suffice to put the employer on notice for "reasonable investigation" purposes.

Pressley does not allege that his employer was aware of his rebuttal brief, preventing any finding
in his favor on the alleged facts.

Furthermore, the hostile work environment claim is

substantively different than the December Charge because it discusses a long term pattern of
behavior rather than conduct related to a discrete act, termination. Thus, there is no basis for

finding that the broader claim is permitted in this Court based on the December charge.
Accordingly, the Court DISMISSES Count I for lack ofjurisdiction.
Pressley has established exhaustion of remedies as to Count III (Racial Discrimination).
The December Charge includes the line "I believe 1 was discharged because of my race ...
December Charge at 1. Neither Party disputes that Pressley exhausted administrative remedies
for matters raised in the December Charge. Thus, the Court FINDS jurisdiction over Count III.
IV.

CONCLUSION

For the reasons stated above, the Court GRANTS the Motion IN PART, DISMISSING
Count I for failure to exhaust administrative remedies.

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

/s/

Henry Coke Morgan, Jr.
Senior United States District Ju
HENRY COKE MORGAN, JR.

Norfolk, Virginia

September SS/, 2017

SENIOR UNITED STATES DISTRICT JUDGE