Morse v. Virginia Department of Corrections et al

Filing 27

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/31/14. (kyou, ) (copy mailed to Pro Se party)

IN THE UNITED
FOR THE

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

E

Richmond Division

L

MAR 3 I2014

U

ROGER LEE MORSE,
clehk, u.s. district court
RICHMOND, VA

Plaintiff,
Civil Action No.

v.

VIRGINIA

3:13cv361

DEPARTMENT

OF CORRECTIONS,

et al. ,

Defendants.

MEMORANDUM OPINION

This

DISMISS

matter

(Docket

Department

of

Hite

before

the

Court

on

11)

filed

by

the

No.

Corrections,

Paul Broughton,

Diggs,

is

Rufus

Harold

Fleming,

Jr., Marie Vargo,

DEFENDANTS'

defendants,

Clarke,

Gary Bass,

William Breed,

N.H.

TO

Virginia

Cookie

Scott,

Wendy S. Hobbs,

Henry

Mack A. Bailey and Letha

(hereinafter "DOC" and "DOC Defendants").
Defendant

(Docket

No.

13)

Claudia

Farr

wherein

she

also

joined

filed

a

the

DOC

MOTION

their

DEFENDANTS'

TO DISMISS

entirety."
MOTION

TO

(Docket No.

For

the

DISMISS

13)

reasons
(Docket

set

No.

will be granted.

11)

TO

DISMISS

Defendants'

and adopted the arguments therein "by reference as
in

MOTION

forth
and

motion

if set

forth

herein,
Farr's

DOC

MOTION

'

FACTUAL BACKGROUND

Roger

pages

of

Lee

Morse

has

a

that

exhibits)

filed

140-page

the

DOC

Defendants

characterized as a "shotgun pleading."
Complaint,
laws

Complaint

(with

have

189

accurately

On the first page of the

Morse has included a laundry list of eighteen federal

that

he

Defendants.

seems

Compl.

to

at

believe

1-2.

were

These

violated

alleged

by

the
and

violations

DOC
the

facts included in the Complaint span nearly all of Morse's time
as an employee of the DOC,
nearly
total

every
of

supervisor

twenty-two

and the Complaint names as defendants

with

(22)

longer work for the DOC

whom

named

However,

Morse

worked.

defendants,

There

some

of

are

whom

a
no

at the heart of the Complaint

is Morse's contention that he suffered employment discrimination
at

the

also

hands

of

presents

the

DOC

several

and

certain

non-employment

of

its

employees.

discrimination

Morse

violations

that are addressed at the end of this Memorandum Opinion.
Taken
set

forth

1986.
of

in

the

light

below.

Morse

In April 1995,

the

trauma

and

most

favorable

began

working

to

Morse,

for

the

employer

leave

time.

evidence

of

could

DOC

facts

on

are

June

26,

Morse lost his son to a homicide.

emotional

stress

of

this

that he was "forced to resign" on August 3,
his

the

not

According

agree

to

discriminatory

to

Morse,

an

the

treatment.

loss,

Morse

claims

1995 because he and

appropriate

"forced
Morse

Because

extension

resignation"

claims

that

of

was

other

employees who requested additional

leave were

allowed more time

off than he was offered and were not forced to resign.
In December of 1997,

some

point

beginning

in

through January 1998,
his

employer

Morse's

That
which

maintain

law.

of

28,

to

February

letter.

26,

and

filed

3:01cv337

an

of

calling
in

and

continuing

Morse

Morse

which

supervisor

probationary
for

Morse's

filed

Commission
him

the

in

a

period

failure

to

employment

ECF

and

one

in

after
this

charge

with

1998

a

the

alleging

half

days

a

("EEOC")

EEOC

1,

action

another

in

was

incident.

2001,

86

incident

the

terminate

Ex.

January

1997

an

performance.

terminate

three

Morse

job

2000,

(approximately
1998,

him

occurred

that

PL's

December

following

could

Opportunity

decision

On

sue"

DOC

satisfactory

Employment
DOC s

accused

the

April

fired

incident

terminated because

On

late

At

Morse was involved in a disagreement with

was

supervisor

"bitch."
during

and

Morse returned to work for the DOC

was

issued

No.

3-1.

years

Court.

(hereinafter "Morse I"). 1

On

after

receiving

a

May

of

23,

EEOC

Civil

the
the

"right

being

his

See

that

violation

Morse

Equal

to

2001

fired

in

letter),

Action

No.

The Complaint in Morse I

alleged all of the foregoing facts as grounds for Morse's claims
for

discrimination,

1 Morse

filed

retaliation,

an action

against

hostile

former

work

environment,

and

Secretary of Defense

Robert Gates in 2007 alleging various violations of federal laws
relating to his military service.
See 3:07cv600.

defamation.

On January 28,

1998 termination,
the

Virginia

2002,

Morse's claims regarding his

hostile work environment,

Human

Rights

Act

were

and his claims under

dismissed

for

failure

exhaust administrative remedies and for being untimely.
No. 12-1,

On

See ECF

Def.'s Ex. 1 ("January 28 Order").

the

day

set

for

trial,

Morse

dismissal of the remaining claims.

2.

to

That

motion

refiling

at

a

was
later

granted,

(1)

for

See ECF No.

subject

date:

moved

that

to

two

Morse

a

12-2,

voluntary
Def.'s Ex.

conditions

not

allege

to

the

claims that had been dismissed by the January 28 Order;

any
same

and

(2)

that Morse obtain counsel before re-filing.

On
to

March 3,

Morse,

being

he

2003,

Morse was

supposed

as

hired

was

a

new

to

hire

in April
and

until

time.2
that

been

DOC

reinstated

As

a

According
instead

result

of

of

his

he was assigned to a lower rate of

Morse noticed the alleged discrepancy in his pay as a new

mobilized

2003

have

employee.

classification as a new hire,
pay.

rehired by the

he

benefits

2003.

In August

he

sent

was

September 2010

to

2003,

Iraq,

when

he

Morse's military unit was

where

he

served from August

returned to work at

DOC full

While he was away on active military duty, Morse claims
did
to

not
which

receive
he

was

the

bonuses,

entitled

under

raises,
the

and

other

Uniformed

pay

Services

2 Morse did not include in his Complaint the dates of his service
that were considered "active duty."
exactly, he was deployed to Iraq.
4

Thus,

it

is

unknown when,

Employment
own

and

filings

serving

Reemployment

show

that

he

Act

("USERRA").

did,

in the military.

in

fact,

(See PL's

Id.

However,

receive

Ex.

C

at

raises

18,

his

while

outlining

salary increases Morse received between 2003 and 2010).

Next,

in

September

2011,

Morse

discriminated against when he was

not

However,

grievance

because

that

did

not

employment;
blank.

he

See

claims,

(which

shows
he

left

PL's

Ex.

he

was
was

C,

ECF No.

incomplete

applications

is

identifies

no

incomplete

examples
to

A,

portions
3-3

that

other

interview

for

a

exhibits

at

ECF No.

an

of

the

position

the

interview

essentially

of

rejecting

his

but

Complaint

situated
after

Morse

for

application

Morse

policy

similarly

to

application

29.

DOCs

Additionally,

for

his

discriminatory,

of

application.

as

selected

complete

substantial

form,

allowed

was

interview for

PL's Ex.

attached
not

fully

conclusory

were

in

See

he

correspondence between Morse and the employee

committee

Complaint)

that

selected to

a job promotion for which he applied.

3-1 at 6.

alleges

people

who

submitting

did

not

file

an

an

internal DOC grievance about the incident within the 30-day time
limit.

Therefore,
an

his

internal

interview

was

complaint

selection

for

invalid

under

procedure,

about
DOC s

his

non-

grievance

and the grievance process ended.

Following that alleged discrimination in September of 2011,
Morse

filed

a

new

EEOC

charge.

That

charge

was

resolved

on

October 25,

2011, and a notice of a right

Morse on that day.

to sue was mailed to

The Court presumes that Morse received that

letter on October 28, 2011.3

Morse does not suggest otherwise.

Morse filed this action on July 16,

2013.

Presuming that

Morse received his right to sue letter on October 28, 2011, the

date of filing is 627 days after the receipt of the right to sue
letter,

and

approximately

684

days

after

discrimination (counting from September 1,

the

2011).

alleged

The Complaint

posits no reason for the delay in filing.

The

DOC

has

grounds:

(1)

under Fed.

R.

a

clear

10(b);

and

(3)

moved

the

to

dismiss

Court's

Civ.

P.

of

12(b)(1);

succinct

Morse's

lack

(2)

pleading

failure

the

subject
Morse's

per

to

case

Fed.

meet

the

on

the

matter

(6)

limitation;

R.

Civ.

voluntary

8(a)

and

requirements

(5) collateral

Morse's failure to comply with various statutes of

(7)

comply

P.

pleading

Morse's

failure to file suit within 90 days of

the issuance of an EEOC right to sue notice;

to

jurisdiction

failure to set forth

laid out in Twombly and Iqbal;4 (4) res judicata;
estoppel;

following

with

the

dismissal;

January
(9)

28

the

Order

(8)

granting

qualified

Morse's failure

his

immunity

request

for

of

DOC

the

" Courts in the Fourth Circuit presume receipt of an EEOC right
to sue letter three days after the date it was mailed if the
date or receipt is unknown or in dispute.
See, e.g., Reid v.
Potter, 2007 U.S. Dist. LEXIS 87050, *6 (W.D.N.C. Nov. 9, 2007).

4 See Bell
Ashcroft v.

Atlantic
Iqbal,

Corp.

556 U.S.

v.
662

Twombly,
(2009).
6

550 U.S.

544

(2007);

Defendants (as applicable to all non-Title VII claims); and (10)

the Eleventh Amendment's grant of sovereign immunity to agencies
of the Commonwealth.

Most (if not all) of the DOCs grounds for

dismissal

and

However,

are

are

valid

could

the motions under Fed.

sufficient

to

dispose

be

the

R. Civ.

of

this

basis

P.

for

12(b)(1)

case.

dismissal.

and 12(b)(6)

Thus,

they

will

be

nicely

lays

out

the

in

an

addressed.

LEGAL

A

recent

legal

decision

standards

for

from

STANDARD

Judge

deciding

Spencer

a

employment discrimination case.

motion

"Rule 12

to

dismiss

allows a defendant to

raise a number of defenses to a claim for relief at the pleading
stage.

Among these are the defenses that a court lacks subject-

matter

jurisdiction over the case

fail

to

Jones

state

v.

*11-12

a

claim upon

Imaginary

(E.D.

Va.

Images,

Aug.

8,

. . . and that the pleadings

which
Inc.,

2012).

the
2012

court
U.S.

can

grant

Dist.

LEXIS

"While a court must

construe the pleadings of a pro se plaintiff liberally,
court
pro

considering
se

a

motion

plaintiff's

to

dismiss

pleadings

must

according

still
to

relief."
111682,

typically
...

evaluate

the

a

the

standards

developed under Rule 12." Id.

"When

a

party

sets

addition to other Rule

12

forth

a

defenses,

7

Rule

12(b)(1)

the court

defense

in

should resolve the

12(b)(1) motion first, because if the court lacks jurisdiction,
the remaining motions are moot." Jones,

at *15

Pharms.,

471 F.3d 544,

Cir.

Inc.

v.

Astellas Pharma,

Inc.,

(citing Sucampo
548 (4th

2006)).

ANALYSIS

Before filing an employment discrimination claim in federal
court,

a plaintiff alleging discrimination under Title VII

complete certain "jurisdictional prerequisites."

"These prerequisites ordinarily are
charge

of

discrimination with

occurrence
plaintiff
agency;
and

the

has

(2)

(3)

of

alleged

instituted

the

EEOC

proceedings

filing of a timely

within

discrimination,

or

with

at *16.

180
300

a

days

of

the

days

if

the

state

or

local

the receiving of a statutory notice of right to sue;

the

timely

commencement

charge within 90 days of
17

the

(1)

Jones,

must

of

a

lawsuit

receiving the notice."

based

Jones,

on

that

at *16-

(internal citations omitted).

Here,

Morse

completed

jurisdictional

prerequisites

(1)

and

(2), but failed to timely file an action in court within 90 days
of

receiving

his

right

Morse waited 627 days

to

sue

letter

from the

EEOC.

Instead,

from the date of receipt of his right to

sue letter and he has offered no explanation for his delay.5

5 In any event, it is unlikely that equitable tolling of the 90day

filing

requirement

requirement
is

strictly

could

apply

construed.

here
See

because
Lewis

v.

the

filing

Norfolk

S.

To the extent that any of Morse's employment discrimination

claims were not raised in his EEOC charge, but were raised first
in this

action,

they must

be

dismissed

for

failure to exhaust

administrative remedies, which, of course, deprives the Court of
jurisdiction

to

administrative

exercising

hear

the

remedies

subject matter

case.

precludes

"Failure

a

federal

jurisdiction in

VII." Edwards v. Murphy-Brown,

L.L.C.,

to

the

exhaust

court

context

760 F.

Supp.

from

of Title

2d 607,

613

(E.D. Va. 2011).6
Both

to

failure

timely file

to

exhaust

administrative

suit following receipt of

deprive

this

Court

claims.

See Jones,

of

jurisdiction

2012 U.S.

Dist.

to

remedies

a right to

hear

Morse's

and

failure

sue letter
Title

LEXIS 11, at * 16-17

VII

(holding

Corp., 271 F. Supp. 2d 807, 811 (E.D. Va. 2003); see also Harvey
v. City of New Bern Police Dep't, 813 F.2d 652 (4th Cir. 1987)
(affirming a dismissal
of a suit
filed
after
91 days
as
untimely); Boyce v. Fleet Finance Inc., 902 F. Supp. 1404 (E.D.
Va. 1992)(dismissing a suit filed after 92 days as untimely).

6

Title

VII

claims

include

allegations

of

employment

discrimination based on an individual's race, color, religion,
sex, or national origin. 42 U.S.C. § 2000e-2 (a) (1) . Other anti
discrimination
statutes
have
also
adopted
the
procedural
requirements of Title VII. Those statutes include, as relevant
here, the Americans with Disabilities Act ("ADA") and the Age
Discrimination in Employment Act ("ADEA"). See Mclntryre-Handy
v. APAC Customer Servs., 422 F. Supp. 2d 611, 620 (E.D. Va. 2006
(citing Davis v. Virginia Commonwealth Univ., 180 F. 3d 626, 628
n.3 (4th Cir. 1999)); Cross v. Suffolk City Sch. Bd., 2011 U.S.
Dist. LEXIS 75970,
*22 (E.D. Va. July 14, 2011)
(citing 29
U.S.C. § 626(d)(1)). Therefore, all of Morse's age, disability,
and race-based discrimination claims are subject to the same
jurisdictional bar that prohibits the Court from hearing his
case.

that

a

"plaintiff's

remedies

failure

'deprives

exhaust

federal

the

to

such

courts

of

jurisdiction over the claim.'"(quoting Jones
Ltd.,

&

551 F.3d 297, 300

Annuity

(W.D.N.C.

Ass'n
June

of

14,

administrative

subject
v.

Calvert Group

(4th Cir. 2009)); Scott v.

Am.,

2013

U.S.

2013)(dismissing

Dist.
the

matter

Teachers Ins.

LEXIS

84612,

*6

case

for

plaintiff's

lack of subject matter jurisdiction because the plaintiff waited
322

days

after

EEOC)).

receiving

Therefore,

the

her

to

sue

motion

DOCs

right

letter

to

dismiss

from

for

the

lack

of

subject matter jurisdiction will be granted.

PLAINTIFF'S

1.

OTHER CLAIMS

Uniformed Services Employment and Reemployment Act
38 U.S.C. §§ 4301 et seq.

In an

action against a state employer,

jurisdiction
S.C.

Dep't

46896

to
of

(D.S.C.

(stating
"State
Hammett

USERRA

an

and

plaintiff's

Health

&

Envtl.

them

25,

suits

2013);

brought

employer)"

other

claims

prohibits

a

Jan.

that
(as

hear

from

by

may

courts

against

see

have

state

being

also

private
be

in

alleging a USERRA violation by the
was

the

South

Carolina

Department
10

38

of

U.S.

U.S.C.

in
§

Dist.

§

to

a

state

LEXIS

against

state

a

court).
limits

courts,

courts.

v.

4323(b)(2)

4323(b)(2)

federal

DOC,

Hammett

individuals

that

employers

claims.

2013

brought

held

heard

federal courts lack

USERRA

Control,

(USERRA)

Morse

and
is

a state agency just as
Health

&

Environmental

Control

in

Hammett.

Here,

as

in

Hammett,

this

Court

lacks

jurisdiction over any USERRA claims Morse may be alleging.
2.

Whistleblower Protection Act (WPA) 5 USC § 2101 et seq.
The WPA protects

federal employees

in certain

retaliation from whistleblowing activities.

While

Morse

is

a

member

of

the

jobs from

See 5 U.S.C. § 2105.

armed

services,

he

is

not

alleging any sort of retaliation perpetrated against him by his
military

employers.

He

has

only

stated

disputes with his state employer,
no

protection

Thus,

his

dismissed

for

his

for

failure

of
to

a

state

a

"Soldier

Sailor

The

SCRA

"provides

[to

to his

his
of

for

state

the

employer.

WPA

which

will

relief

be

can

be

P. 12(b)(6).

Relief Act"

Civil Relief Act ("SCRA")

with

claim

relating

The WPA affords Morse

violation

granted under Federal Rule Civ.
3.

the DOC

interactions

allegations

facts

now known

as

the

Servicemembers

50 U.S.C. App. §§ 501 et seq

members

of

the

armed

services]

a

variety of protections against such diverse ills as cancellation

of

life

insurance

contracts

jurisdictions." Gordon v.

454,

458

such

civil

while

(4th

they

532(3).

Cir.

actions
are

The

Va.

as

.

.

and

taxation

Pete's Auto Serv.

2011).

in

the

purpose

on

the

637

F.3d

prevents

servicemembers'

property

See

Act

the

multiple

Act

military.

of

in

of Denbigh,

Additionally,

foreclosures

serving

general

.

50

is

U.S.C.

to

App.

§

provide

a

"temporary suspension of judicial and administrative proceedings

11

that may adversely affect the civil rights" of servicemembers.
50 U.S.C. App. § 502.

these

civil

cannot

file

However, absent the initiation of one of

proceedings
suit

under

against
the

a servicemember,

SCRA

itself.

Morse

a plaintiff
here

shown that he was subject to civil court action,

has

not

and has not

alleged a violation of the SCRA provisions designed to protect
him if he were subject to such a suit.

Moreover, Morse appears

to have simply listed the statute on the cover of his Complaint.
He

has

not

statute.

specifically

In

any

event,

mention of employment or
Any

basis

reemployment

of

Morse's

under USERRA,

or

alleged
the

any

related

provisions

reemployment

employment

military

of

violation
the

SCRA

would

which (as noted previously)

need

to

be

on

the

addressed

Therefore,

claim will be dismissed for failure to state a claim upon
P. 12(b)(6).

Family Medical Leave Act ("FMLA") 29 U.S.C. §§ 2601 et seq.
The FMLA has a two-year statute of limitations.

2617(c)(1).
employer's
Morse

no

governs the employment

which relief can be granted under Fed. R. Civ.

4.

make

claims

and reemployment of people serving in the military.

this

that

rights of servicemembers.

discrimination

service

of

A three-year
conduct

presumably

arising

out

of

was

willful.

intends

his

statute

to

employer's

of
29

limitations
U.S.C.

allege
denial

a
of

during the trial of Morse's son's killer.
12

29 U.S.C.

applies

if

§ 2617(c)(2).

violation

of

additional

§

the

Here,

the

FMLA

leave

time

Morse has not plainly

stated this claim,

but has again simply listed a violation of

the FMLA on the header of his Complaint and left the Court to

determine how a violation of that statute might fit within the
facts he has alleged.

In this case,

the only facts that could

possibly give rise to a FMLA violation would be the dispute
about leave following the killing of Morse's son's.

That event,

however, occurred in 1995 and is well-beyond even the three-year
statute of limitations set by the statute.

Morse's FMLA claims

(to

barred

the

extent

he

has

made

them)

are

time

and will

be

dismissed.

5.

Victim Witness Rights Act (VWRA) Va.

The

handling

VWRA

the

is

a Virginia

needs

and

statute

rights

of

initiation of judicial action
This

statue

is

VWRA does not
of

the

of

action,

inapplicable

Morse

statute,

and

without

(2)

a

even

federal

jurisdiction,

jurisdiction

to

hear

if the

a

the

standards

for

victims

crime

following

the

the
for

create a private right of

supplemental

law.

setting

against

to

Code Ann. § 19.2-11.01

accused perpetrator.
two

reasons:

statute did create

claim to

claim

The

action for a violation

provide

the

it is unlikely the Court

single

(1)

for

a

cause

Court

with

would have

a violation

of

state

The VWRA simply spells out procedures for law enforcement

and prosecutors for alerting victims to plea agreements,
releases, outcome of cases,
etcetera.

prison

support services for crime victims,

It does not grant

Morse
13

any

substantive rights

for

which he is claiming a denial.

Even if it did, the only facts

to even possibly support such a claim occurred in 1995 and would
be barred by the statute of limitations.

The same problems with a lack of supplemental jurisdiction
would apply to Morse's other listed state law violations.

Morse

has included "actual fraud" and defamation of character in the
statutes he claims were violated.

question

to

keep the

case

Without some sort of federal

in federal

court,

the

Court

has no

jurisdiction to also hear these claims.7

6.

Age Discrimination in Employment Act (ADEA) 29 U.S.C. §§
621 et seq. and the Americans with Disabilities Act (ADA)
42 U.S.C. §§ 12101 et seq.

Before filing suit

for discrimination

under

the ADA,

a

plaintiff must exhaust his administrative remedies by filing a
charge with the EEOC.

180

Mclntyre-Handy,

(citing

Davis,

F.3d

applies

to discrimination

at

628

n.3).

claims made

422

F.

Supp.

The same
under

2d at 620

requirement

the ADEA.

Cross,

2011 U.S. Dist. LEXIS 75970, *22 (citing 29 U.S.C. § 626(d)(1)).

The issuance of a right to sue letter and the requirement that
plaintiffs file suit within 90 days of receipt of that letter

n

28 U.S.C. § 1367(a) states that "in any civil action of which
the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy." Without the original jurisdiction over Morse's

other claims,
his

the Court has no supplemental jurisdiction over

state law claims.

14

are the same for the ADA, ADEA, and the race-based employment
discrimination

claims

Plaintiff

brings

under

Title

VII.

See

Cameron v. Potter, 2006 U.S. Dist. LEXIS 3217, *4 (E.D. Va. Jan.

10, 2006)

(applying the 90-day rule to an ADEA claim); Jones v.

Imaginary Images, Inc., 2012 U.S. Dist. LEXIS 111682, *17 (E.D.
Va. Aug.

8,

2012)

(noting the EEOC administrative requirements

for Title VII and ADA claims). As discussed above, Morse waited
627 days from receiving his right to sue letter from the EEOC to
file this

EEOC

action.

right

to

Any information that was included in Morse's

sue

letter

has

essentially

"expired"

and

any

information that was not included in the EEOC charge but was set

out for the first time in the Complaint here is jurisdictionally
barred for failure to exhaust administrative remedies.

CONCLUSION

For

the

(Docket No.

above

11)

and

reasons,

Farr's

DEFENDANTS'

MOTION

TO

MOTION

DISMISS

TO

DISMISS

(Docket No.

13)

will be granted.

Because the Court is dismissing Morse's action,

MOTION FOR RESTRAINING ORDER,

PLAINTIFF'S

PRELIMINARY INJUNCITON OF RELIEF,

15

WITH MEMORANDUM OF LAW IN SUPPORT (Docket No.

17)

need not be

addressed.

The Clerk is directed to send a copy of the Memorandum
Opinion to the plaintiff and to counsel for the defendants.
It is so ORDERED.

/a/

fcfp

Robert E. Payne

Senior United States District Judge

Richmond, Virginia
Date:

March 31,

2014

14