Atkins v. Fed Ex Freight, Inc.
Filing
50
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/28/15. (tdai, )
IN THE UNITED
f
STATES DISTRICT COURT
MAY 2 8 2015
1
FOR THE EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. DISTRICT COURT
Richmond Division
RICHMOND. VA
PHILIP D. ATKINS,
Plaintiff,
Civil Action No.
v.
FEDEX FREIGHT,
3:14cv505
INC.,
Defendants.
MEMORANDUM OPINION
This
MOTION
TO
matter
is
DISMISS
before
(Docket
the
No.
Court
26) .
on
For
DEFENDANT'S
the
reasons
PARTIAL
set
forth
below, this motion will be granted in part and denied in part.
I.
BACKGROUND
a.
Factual Background
The facts are
recited as alleged.
The plaintiff is given
the benefit of all permissible inferences.
Plaintiff
Philip
Defendant FedEx Freight,
Atkins
Inc.
("Atkins")
("FedEx")
2009 as a Supplemental City Driver.
("SAC")
(Docket No.
20)
at 54.
employed
by
beginning on October 26,
Second Amended Complaint
He was promoted to City Driver
during the course of his employment.
the SAC begin in August of 2012 when,
African American truck drivers
was
Id.
The allegations in
according to Atkins,
"two
were discharged from employment
as
truck
the
that
drivers
two
for
fired drivers
management
[that]
included
Atkins."
in
the
and
had
Drivers
clerks
FedEx"
and that,
white
Ahit
a
a
list'
terminal
Id.
supervisor
of
management
at
Richmond
following
55.
Service
other
was
Center
incident,
"informed Atkins
African
wanted
He
the
to
also
American
fire,
which
informed
office
"in
by
two
mid-October
2012" that "service center management was searching for a way to
fire him."
Id.
at 56.
On October 17, 2012,
notified
Atkins
Violation
without
Atkins
on
that
October
notifying
alleges
previously
and
Kevin Usilton,
he
had
16,
2012
dispatch
that
such
that
of
committed
"by
the
to
a
Compensated
taking
a
had
give
such
Id.
never
a
Time
bathroom
occurrence."
notification
failure
an Operations Manager,
been
break
at
57.
required
notification
had
never been considered a violation of company time policy.
Id.
Atkins
his
was
warned
termination.
Atkins'
Id.
that
at
conversation
58.
with
this
offense
Sometime
Usilton,
could
during
Atkins
result
the
week
reports
Caucasian employees...who were aware of Atkins'
in
following
that
"three
Compensated Time
Violation informed him that they had been similarly charged with
Compensated
Time
breaks...[and]
warnings."
Violations
indicated
Id. at 59.
that
for
they
were
taking
issued
unauthorized
mere
verbal
"Within
October
days"
2012,
17,
five
Atkins
supervisor to
Human
contact
Resources
"advised
in
informed...that
FedEx
Action
Violation,
charging
informing
from
him
Action
2012,
510.
the
with
taking
Id.
at
American
FedEx's
District
did
training
so
for
and
time
infractions...[but]
was
Id.
received the official
discussed
Compensated
unauthorized
recommended
55
on
African
Atkins
Atkins
noting
"management
Id. at 513.
Corrective
requested
31,
him
employment."
notice.
had
Usilton
was
couldn't train him."
Form
that
at
with
an
who
avoid...policy
On or about October
Corrective
Pullen,
by
Id.
he
to
conversation
advised
Charles
that
order
his
was
manager.
Pullen
reporting
of
12-13.
lunches,
Atkins'
Atkins
Time
and
termination
contested
the
In the week following the issuance of the
Form,
Pullen
"called
Atkins
to
advise
that
FedEx could not terminate him for the purported Compensated Time
Violation."
Id.
at
514.
During
that
conversation,
Atkins
informed Pullen that management had recommended his termination
and
that
"management
had
similar time violations,
instead of
employment
would investigate.
On
November
Manager,
admitting
charged
but
three
Caucasian
had issued mere
termination."
Id.
drivers
with
verbal warnings
Pullen
said that
he
Id.
6,
2012,
Ike
Fanz,
a
FedEx
Service
Center
"approached Atkins and attempted to intimidate him into
wrongdoing."
Id.
at
515.
Atkins
refused
and
Fanz
stated that,
while he wanted to
suspend him.
Id.
On
fire Atkins,
November
9,
2013,
Fanz would merely
Fanz
informed Atkins
that he would be suspended without pay for three days.
516.
Atkins
contacted
suspension.
Id.
suspension,
human
Adrian
517.
who
advised
him
to
Atkins did appeal and,
appeal
at
his
following his
returned to work "under probation" while the appeal
was pending.
FedEx
at
Pullen,
Id.
Id.
He further states that Pullen "instructed the
resources
Prentiss,
to
officer
of
investigate
the
Richmond
Atkins'
Service
allegations
discrimination" while Atkins' appeal was pending.1
Atkins next alleges that,
Center,
of
race
Id. at 518.
while his appeal was pending,
he
"suffered several incidents of harassment from Terrance Collins,
the
Assistant
include
incidents
menacing
head
Service
open
demeanor,
like
a
Center
wherein
Collins
threatening
pineapple
Manager."
to
with
at
"confronted
*split
a
Id.
and
machete'",
that he was "out to get him", mocked Atkins'
519.
Atkins
peal
These
with
[sic]
informed
a
[his]
Atkins
hairstyle, informed
Atkins that he "had previously beat a discrimination case...and
that the company would
fly its lawyers in on a private jet to
defend him", told him not to "think about snitching," and showed
1 Atkins states that he "made his discrimination claims to Pullen
and Prentiss", but it is not clear when the claims, if any, were
made to Prentiss.
SAC at 521.
The SAC states that Pullen asked
Prentiss
to
"investigate
Atkins'
allegations
of
race
discrimination", but does not mention any conversation between
Prentiss
and
Atkins
wherein
Atkins
complains
of
racial
discrimination directly to Atkins.
Id. at 518.
Atkins a revolver that Collins kept in his glove compartment "in
case black guys like you with their dreadlocks run up on
Id.
[him]."
at 55 19-21.
"Sometime
in
Michael Capps,
523.
December
2012"
Atkins
met
with
Collins
who was an Operations Manager with FedEx.
and
Id. at
Atkins requested to be considered for an open position and
was informed that he was not eligible to apply for the position
because
he
pending.
was
Id.
still
The
on
probation,
as
his
appeal
three then discussed Atkins'
and Atkins informed Collins and Capps
was
still
appeal briefly
that "he was bothered by
the situation because he felt he had been discriminated against
and
harassed
been
Id.
and
issued
to
at 524.
get
by
receiving
other
drivers
a
who
"Atkins
corrective
who
action
committed
the
that
same
had
not
action."
Collins told Atkins that he was free to leave FedEx
job
elsewhere
Atkins then started to
Capps
the
"grabbed the
felt
as
if
if
he
felt
that
way.
leave the office,
handle
Capps
were
to
hold
[the
provoking
comments or gestures toward Capps."
but was
Id.
door]
Id.
525.
stopped by
shut."
him. ..[but]
at 526.
at
made
Id.
no
It appears
that Capps then told Collins that he felt threatened by Atkins
and Collins
replied that Capps should "put it on paper,
[Atkins would be]...gone."
On March 5,
and
Id. at 526.
2013, Atkins was informed that the appeal had
been resolved in his favor and that he would receive three days
of back pay from his suspension.2
Atkins,
days,
Id.
"[t]he
but
customary
[his]
at 522.
Id.
decision
decision
wasn't
at 527.
time
made
for
for
During those four months,
According to
an
appeal
nearly
four
was
10
months."
Atkins was not eligible
for many promotions and transfer opportunities because he was on
probation.
Id.
On
March
7,
2013,
Collins
approached Atkins,
"chided him in the presence of other employees for prevailing in
appeal. .. [and]
his
menacingly,
return to
xthis
grabbed. ..Atkins
isn't
over.'"
work after March
Id.
7 and
long term disability benefits."
by
at
the
528.
and
Atkins
"applied for
Id. at 532.
arm
and was
did
said
not
awarded
On March 11, 2013,
Atkins complained about his March 7 encounter with Collins in a
written statement to FedEx.
by
a
FedEx
"informed
employee
about
[that employee]
Id.
the
of the
at 529.
incident
Atkins was
on
March
interviewed
12,
2013
and
race discrimination behind the
termination resulting from the Compensated Time Violation."3
Id.
at 531.
2 The SAC does not disclose what the grounds of the appeal or the
reversal were.
3 Although Atkins claims to have been terminated from his
employment at FedEx in several places in the SAC, the facts
alleged therein do not support that statement.
Rather, it
appears that Atkins was suspended without pay for three days as
a result of the Compensated Time Violation.
b.
EEOC Charge
On March 20,
2013,
Atkins filed a Charge of Discrimination
against FedEx with the Equal Employment Opportunity Commission.
Docket No. 27-1 at 3.4
In that charge, Atkins checked the boxes
for discrimination based on race,
Id.
retaliation, and disability.5
His statement of the charge reads as follows:
1.
I
was
hired
on
October
26,
2009,
as
a
Supplemental City Driver.
I progressed to
City
Driver.
On
November
12,
2012,
I
received
a
critical
warning
and
was
suspended for three days. This disciplinary
action
resulted
occurred
on
from
October
16,
an
incident
2012.
On
that
November
26, 2012, I filed an internal appeal on the
disciplinary
action.
Because
of
the
disciplinary action on my record, I could
not apply for promotions for one hundred and
eighty days (180). In December 2012, I could
not apply for the position of Road Driver
(Maryland)
and
Senior
Driver
(Richmond).
Also in December 2013, I was passed over for
better paid road assignments. On March 5,
2013, I was notified that my that my [sic]
4 The Court can consider this document when ruling on a Motion to
Dismiss because it is integral to, and explicitly relied upon,
in the SAC. Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th
Cir. 1999) ("Plaintiffs cannot prevent a court from looking at
the texts of the documents on which its claim is based by
failing to attach or explicitly cite them.)
Further, while
Atkins did not attach the EEOC Charge of Discrimination to his
Complaint,
FedEx is entitled to attach the document
Motion to Dismiss because it was referred to in the SAC.
to its
Gasner
v. Cnty. Of Dinwiddie,
162 F.R.D. 280, 282 (E.D. Va. 1995)
("[W]hen the plaintiff fails to introduce a pertinent documents
as part of his complaint, the defendants may attach the document
to a motion to dismiss without converting the motion to one for
summary judgment.")
5 Atkins does not make any claims based on disability in any of
his complaints in this Court.
critical warning and suspension was reduced
to a written warning and I was compensated
for the suspension. On March 7, 2013, I was
physically assaulted and verbally threatened
by
Terrence
Collins,
Assistant
Service
Center Manager. On March 8, 2013, I filed a
complaint against Mr. Collins. On March 11,
2013,
I met with Norm Cullens,
Security
Officer,
and
Adrianne
Prentiss,
Human
Resources
Representative,
regarding
my
complaint against Mr. Collins. On March 12,
2013, my physician took me out of work. On
March
13,
2013,
I requested
Family and
Medical
Leave.
On
March
16,
2013,
Mr.
Cullens stated the investigation in to my
complaint concluded to be false.
Also on
March 18, 2013, Kim Morris, Director, Human
Resources, informed me that my short term
disability was pending awaiting a statement
from my physician.
2.
On
Center
October 17, 2012, Ike Fanz, Service
Manager,
stated
that
he
had
recommended
that
I
be
compensated time violation
October 16, 2012.
discharged
that
occurred
for
on
3.
I believe
I was
disciplined more
severely
than
my
White
co-workers,
and
passed over for better paid road assignments
because
of my
race,
Black,
in
violation
of
Title VII of the Civil Rights Act of 1964,
as amended.
against
by
I also believe
being
I was retaliated
physically
verbally threatened in
704a of the same Act,
assaulted
and
violation of Section
and in violation of
the Americans with Disabilities Act of 1990,
as
Id.
at
3-4.
c.
On
amended.
Complaint and Procedural Background
August
Docket No.
4.
6,
2014,
Atkins
The Complaint was
8
filed
his
initial
Complaint.
amended twice and the
current
operative
complaint
is
the
SAC.
Docket
presents four counts against FedEx.
Discrimination
count,
in
Violation
of
No.
20.
The
SAC
Count I is a claim for Race
Title
VII.
SAC
at
9.
In
this
Atkins claims that FedEx subjected him to "discrimination
in the terms and conditions of his employment on account of his
African
American
employment
race...by
discipline
subjecting
for
engaging
[him]
in
to
more
severe
conduct... for
which
Caucasian employees were not terminated when they committed the
same violation."
Id. at 542.6
A claim of this sort is commonly
referred to as a "disparate discipline" claim.
Count
Title
VII.
[him]
to
II
alleges
Id.
at
on
[sic]...in
direct
Count
III
Atkins
Atkins
that,
discipline,
his
violation
"[b]y
physical
distress
to
in
and
subjecting
assault
mental
complaining
against
of
and
anguish
of
race
him for engaging
in
Id. at 544.
a
claim of race harassment
"to
in
violation
Under this Count, Atkins alleges that
pervasive and
environment
Service Terminal,
retaliation
claims
retaliated
Id^ at 10.
subjected him
work
in
response
alleges
of Title VII.
of
emotional
FedEx
protected activity."
6 Again,
10.
him
discrimination,
hostile
claim
discrimination
inflicted
FedEx
a
from
his
severe harassment
superiors
at
the
and a
Richmond
on account of his African American race."
claims
he
Compensated Time Violation,
was
terminated
as
a
result
of
Id.
his
but it is clear from the SAC that he
was only suspended for three days without pay.
9
at
546.
Claims
of
this
sort
are
referred
to
as
"hostile
work
environment" claims.
Finally,
in
Count
IV,
Atkins makes
Infliction of Emotional Distress,
Id.
at
Intentional
in violation of Virginia Law.
11.
FedEx
Civ.
a claim of
seeks
P. 12(b)(1)
12(b)(6).
dismissal
of Counts
II
and
III
based on
Id.
R.
R. Civ.
and dismissal of Count II under Fed.
Fed
P.
This motion is ripe for decision.
DISCUSSION
I.
The
Rule
12(b)(1)
Motion
to
Dismiss
(Failure
to
Exhaust
Remedies)
FedEx
Fed.
R.
Civ.
properly
subject
This
to
P.
so,
II)
seeks
dismissal
12(b)(1).
exhaust
matter
is
(Count
firsts
his
It
FedEx,
and hostile
on
Counts
alleges
remedies,
jurisdiction
says
of
as
this
because
that
is
Court
the
work environment
II
and
Atkins
(Count
confer
VII
of
failed
to
Title
charges
under
has
required
in
III
cases.
retaliation
III)
could not
conceivably be thought to fall within the charges as described
in Atkins' EEOC charge.
b.
Standard
If a federal
court finds
that
is does
not have subject
matter jurisdiction over a case or controversy,
the motion.
Arbaugh v.
Y & H Corp.,
10
546 U.S.
it must dismiss
500,
514 (2006).
Thus,
whether there is subject matter jurisdiction,
the Rule 12(b)(1)
motion,
must be addressed first.
"Before a Title VII
must
file
an
future litigation.
the
initial
complaint,
and
[EEOC].
those
those
lawsuit.'"
506
(4th
Cir.
80
Chacko
2005)
F.3d
charges
reasonably
v.
by
964,
that
related
963
to
Employment
in
Evans
v.
(4th Cir.
the
original
a
subsequent Title
Techs.
1996)).
429
F.3d
505,
Applications
"If
^the
&
claims
exceed the scope of the EEOC charge and
would
naturally
have
arisen
from
they are procedurally barred.'"
55 F.3d 151,
Id.
156
charge
of
discrimination
generally
operate
limit the scope of any subsequent judicial complaint."
80 F.3d at 962-63.
an
at
(4th
complete
the
It is "clear that
must
to
Evans,
"At the same time, however, lawyers do not
administrative
construe them liberally."
litigation
of
For that reason, the "allegations contained in the
administrative
typically
he
investigation
Institution,
(quoting Dennis v. County of Fairfax,
Cir. 1995)).
Equal
reasonable
Patuxent
(quoting
investigation thereof,
509
the
suit,
This charge frames the scope of
developed
raised under Title VII
any
with
complaint may be maintained
VII
Co.,
charge
formal
*Only those discrimination claims stated in
charge,
the original
Serv.
plaintiff can bring a
administrative
Opportunity Commission
as raised in
Chacko,
the
correspond
11
and
so
courts
made
in
formal
429 F.3d at 509.
factual
to
charges,
allegations
those
set
forth
in
the
administrative
charge."
Id.
In
other
words,
"[a]
claim
will...typically be barred if the administrative charges alleges
one
type of discrimination - such as discriminatory failure to
promote
-
and
the
discrimination
in
claims
encompasses
another
pay and benefits."
Id.
type
-
such
Additionally,
as
"the
allegation of a discrete act or acts in an administrative charge
is
insufficient
when
the
plaintiff
broader pattern of misconduct."
Thus,
"[a]
or
Transp.,
practices
Inc.,
(internal
the
a
Id.
parties,
complained
969
F.
quotations
and to describe generally the
of."
Supp.
2d
Baiden-Adams
422,
omitted).
427
However,
allegations in the administrative charge are
to
alleges
charge is acceptable only if it is sufficiently
precise to identify the
action
subsequently
factual
allegations
the
2013)
factual
reasonably related
connection between the charge and the claim is sufficient."
Id.
(emphasis
the
test
for
formal
"if
Va.
the
The
the
(E.D.
Forsythe
litigation,
added)
in
v.
determining
whether
administrative charge and the complaint are "reasonably related"
is
whether
or
not
a
"reasonable
administrative
charge
allegations set
forth in formal litigation."
at
would
have
investigation
509.
b.
Retaliation -
(i)
Count II
Parties' Arguments
12
uncovered
the
Chacko,
[the]
of
factual
429
F.3d
Although FedEx acknowledges that:
states
that
he
was
(1)
retaliated against/
box marked "retaliation"
on the
EEOC
Atkins'
and
(2)
charge
EEOC charge
he
form,
checked the
Atkins'
EEOC
charge was insufficient to exhaust any retaliation claim because
it
failed
to
identify
whatsoever...[and],
even
if
activity in his EEOC charge,
underpinned
by
the
kind
"any
protected
Plaintiff
identified
FedEx
Atkins'
also
EEOC
of
this
contends
charge,
states
point,
that
as
assaulted
FedEx
he
and
protected
^broader
pattern
of
misconduct'
Docket No.
27 at
429 F.3d at 509).
that
was
no
reasonable
presented,
events on which he bases his
On
a
his subsequent retaliation claim is
prohibited by the Fourth Circuit in Chacko."
13 (citing Chacko,
activity
would
have
uncovered
retaliation claim in the SAC.
acknowledges
"retaliated
verbally
investigation into
that Atkins'
against
threatened",
by
but
EEOC
being
argues
the
Id.
charge
physically
that
Atkins
"presently underpins his retaliation claim with a broader set of
facts...[that were]
discrimination
distress
and
never presented to the EEOC
in discipline;
mental
discrimination."
(b)
anguish;
Id.
at
and
14.
the
infliction
(c)
Thus,
a
[namely]:
of
emotional
complaint
says
(a)
FedEx,
of
race
Atkins
"presented the EEOC with neither the alleged protected activity
nor most
of the alleged adverse employment actions about which
he now complains."
Id.
13
Atkins does not directly address Count II in his response.
Docket No.
that
the
scope
30 at
4.
"claims
of
his
Instead,
in
this
original
he makes the conclusory assertion
litigation
charge
[and
are
a] 11
entirely
of
the
within
claims
the
he
is
bringing to this Court would have been uncovered in a reasonable
investigation of the charge."
Id. at 7.7
(ii) Analysis
"A plaintiff must exhaust administrative remedies to bring
suit
on
a
claim
of
exhaustion
requirement
sufficient
charge
retaliation....One
for
a
means
retaliation
specifically
of
meeting
claim is
identifying the
by
the
filing
retaliation.
a
A
plaintiff may also bring a claim of retaliation not explicitly
contained in the EEOC charge where that claim of retaliation was
a
*kind
of
contained
during
discrimination
like
the
growing
in
the
pendency
Baiden-Adams,
Portfolio
969
Recovery
F.
of
or
the
Supp.
Associates,
case
2d
at
LLC,
related
out
of
before
431
682
to
allegations
such
the
commission.'"
(quoting
F.
Supp.
allegations
Johnson
2d
v.
560,
573
EEOC charge states that he "believe[d that he]
was
(E.D. Va. 2009)
Atkins'
charge
or
(emphasis added)).
retaliated against by being physically assaulted and verbally
7 This kind of broad statement is not only poor advocacy, but it
also poses the risk that the client's
complaint
can be
dismissed.
But, because the EEOC charge is to be liberally
construed,
the
Court
must
make
the
requisite
analysis,
notwithstanding the poor advocacy.
14
threatened";
appeal;
describes the course of his disciplinary action and
and mentions the March 7, 2013 incident in which Atkins
states he was
Terrance
"physically assaulted and
Collins."
checked the box
3.
However,
Docket
No.
verbally threatened by
27-1,
at
3-4.
Atkins
for discrimination based on retaliation.
also
Id.
at
the EEOC charge does not contain any allegation of
relevant protected activity.8
In
the
SAC,
Atkins
alleges
discrimination in discipline,
him
to
emotional distress
his
complaining
of
that
[him]
to
physical assault and inflicted on
and mental
race
FedEx "subjected
anguish...in direct
discrimination."
SAC
at
response
SI44.
He
also identifies four instances of possible protected activity in
the SAC.
First, Atkins states that he spoke with Charles Pullen
and
him
told
that,
while
terminal
management
had
recommended
Atkins' termination, management "had issued mere verbal warnings
instead of
with
employment
similar
states
time
that,
termination"
violations.
"during
the
for
Id.
three
at
pendency
Caucasian
514.
of
the
Second,
appeal,
instructed...Adrian Prentiss to investigate Atkins'
8 The
against
EEOC
charge
Collins
on
does
March
state that
8,
2013
Atkins
and
investigators regarding that complaint.
protected activity
Atkins'
complains,
occurred
it
is
that
drivers
Atkins
Pullen
allegations
filed a complaint
he
met
However,
with
FedEx
because that
after the "retaliation" of which
not
sufficient
to
establish
an
allegation of protected activity for the purpose of this motion.
Docket No.
27-1 at 3-4.
15
of
race
discrimination."
while the
by
appeal
mocking
Id.
at
was pending Collins
Atkins'
hairstyle,
he
kept "in case black guys
up
on"
December
Third,
2012
that
he
asserts
harassed him,
that
that,
inter alia,
he
had
beat
alleges
"was
a
and showing Atkins a pistol that
like you with their dreadlocks
Atkins
he
And,
mentioning
discrimination case previously,
me.
518.
that
bothered
he
by
told
[the
run
Collins
in
disciplinary]
situation because he felt that he had been discriminated against
and
harassed
Finally,
by
Atkins
receiving
states
the
that
corrective
he
"gave
action."
a
written
Id.
at
524.
statement
to
FedEx about the...physical altercation by Collins" and "informed
[Norm Cullen]
resulting
of
the
from the
race
discrimination
the
the
Compensated Time Violation"
2013, after he left work at FedEx.
Whether
behind
EEOC
charge
retaliation allegations
in the
termination
on March
11-12,
Id^ at 529-30.
can
be
SAC
said
to
is a close
encompass
call.
the
However,
careful comparison of the EEOC charge with the SAC reveals that
the allegations
in the EEOC charge are sufficiently related to
those in the SAC that a reasonable investigation into the EEOC
charge
would
complains
in
have
the
uncovered
SAC.
The
the
retaliation
EEOC
charge
of
which
explicitly
Atkins
mentions
Atkins' complaints about discriminatory discipline and promotion
practices
at
FedEx,
his
March
7
altercation
with
Terrance
Collins, and that he spoke with Adrianne Prentiss regarding his
16
March
Mr.
11 complaint.
Prentiss,
Atkins'
it
Docket No.
reasonable
is
27-1.
to
If the EEOC spoke with
believe
that
the
topic
of
complaints of racial discrimination would come up in the
EEOC
investigation
because
Prentiss
complaints at the behest of Pullen.
investigated
This would provide the EEOC
with the alleged protected activity.
Also,
at least one form of
the retaliation that Atkins alleges in his complaint
7 altercation with Collins)
is
those
(the March
explicitly included in the EEOC
charge as well.
Thus,
allow
a
basis
of
Rule
the
EEOC
reasonably
Atkins'
12(b)(1)
charge
provides
thorough
retaliation
EEOC
sufficient
investigator
allegations.
motion to dismiss
Count
information
to
uncover
Therefore,
II of the
to
the
FedEx's
SAC for lack of
subject matter jurisdiction will be denied.
c.
Racial Harassment/Hostile Work Environment [Count III]
(i)
Parties' Arguments
FedEx argues
that Count
III must be dismissed for
lack of
subject matter jurisdiction because Atkins' "EEOC charge alleged
only
race
discrimination
retaliation based
ADA...[and]
on
race,
based
and
on
disparate
retaliation
treatment,
pursuant
to
the
was entirely devoid of any reference to harassment
or a hostile
work environment
factual
allegations
claim."
Docket No.
and lacked any of the myriad
underpinning
his
27 at 10.
In short,
17
present
race
harassment
FedEx alleges that
Atkins'
claims
of
racial
harassment
in
the
form
of
a
hostile
work environment in Count III are predicated not on what Atkins
believes was discriminatory discipline,
pattern
of
interactions
with
Collins
are detailed in the complaint.
allege
that
Atkins'
these
race
retaliation
in
for
discrimination,
to
his
and
other
managers
which
took
the
place,
and
discipline
complaints
to
only
he
Pullen
mentions
received
about
and
racial
FedEx argues that the EEOC charge cannot be said
encompass Atkins'
claim
to
and
Because the EEOC charge does not
interactions
relation
but instead only on the
thus
racial
this
harassment/hostile work environment
Court
does
not
have
subject
matter
jurisdiction over it.
Atkins opposes FedEx's motion.
"the
allegations
sufficiently
of
related
race
to
No. 30 at 6.
was
discrimination
race
environment for [Count III]
In doing so, he argues that
in
harassment
the
or
charge
hostile
to proceed to litigation."
are
work
Docket
He points out that his EEOC charge alleges that he
"disciplined more
severely"
than
his
white
co-workers
and
that he was "retaliated against by being physically assaulted
and
verbally
threatened"
and
he
argues
that
these
statements
were related enough to the factual allegations involving Collins
and other managers that the allegations in the SAC would have
been
developed
charge.
by
a
reasonable
Id.
18
investigation
into
the
EEOC
(ii) Analysis
"The
Fourth
Circuit
has
consistently
held
that
a
plaintiff s claim exceeds the scope of the EEOC charge where the
charge
alleges
introduces
Supp.
another
2d at
district
one
428.
courts
basis
of
discrimination
independent
To that
have
disparate
reasonably
related
end,
found
treatment
basis."
the
that
a
EEOC
charge
of
litigation
Baiden-Adams,
Fourth Circuit
charges
discrimination
to
and
or
that
and
F.
and several
allege
retaliation
harassment
969
only
are
not
hostile
work
environment such that an investigation of the EEOC charge would
uncover
evidence
claim.
For example,
Fourth Circuit
of
the
harassment
or
hostile
work
environment
in Taylor v. Virginia Union University,
upheld
the
dismissal
of
the
plaintiff's
the
sexual
harassment claim, finding that, though the EEOC charge described
her boss calling her at home, touching her arm, and telling her
that
he
hired
her
sufficiently allege
Cir.
1999)
(en
because
sexual
he
liked
harassment.
banc)(abrogated
on
Palace, Inc. v. Costa, 539 U.S. 90,
Court of Appeals
charge
her,
193
such
facts
F.3d
219,
other
98-99
grounds
(2003)).
found that "even construing
liberally]",
she
did
not
exhaust
her
did
239
by
not
(4th
Desert
Further, the
[plaintiff s EEOC
sexual
harassment
claim because the actionable portion of her charge only related
to gender
discrimination
also Baiden-Adams, 969 F.
for
a failure
to promote.
Id.
See
Supp. 2d at 429-30 (granting a motion
19
to
dismiss
for
harassment
claim
discharged
due
failure
raise");
Supp.
when
to
Logan v.
60,
61
to
the
race
exhaust
EEOC
and
the
charge
sex
plaintiff's
alleged
"after
sexual
that
asking
she
was
a
pay
about
Colonial Williamsburg Hotel Properties,
(E.D.
Va.
1996)
941 F.
(granting a motion to dismiss
for
failure to exhaust when the plaintiff s EEOC charge claimed sex
discrimination
but
the
plaintiff
sued
on
a
sexual
harassment
theory).
Atkins'
EEOC
charge
written warning and was
"passed
over
for
alleges
that
he
"received
suspended for three days",
better
paid
road
a
critical
that he
assignments",
that
was
he
was
"physically assaulted and verbally threatened [on March 7, 2013]
by Terrance
March
It
7,
also
Collins;"
2013
and that
interaction with
alleges
that
he
filed a
Collins.
Atkins
and
that
he
was
threatened in retaliation.
describe
any
of
the
physically
Id. at 4.
other
Docket
believed
disproportionately disciplined and not
race
complaint
suffering
Additionally,
charge
arises
from
a
that
assaulted
at
he
and
of
the
context
of
promotion by FedEx.
20
3.
was
his
verbally
between
hostile
Atkins
and
it allege that he
work
environment.
the only explicit mention of race in Atkins'
in
the
The EEOC charge does not
interactions
racially
27-1
promoted because
Collins that he alleges in the SAC, nor does
was
No.
about
discriminatory
discipline
EEOC
and
That,
however,
does not end the inquiry because it is next
necessary to apply the so-called "reasonable investigation test"
for assessing the relation between charges presented to the EEOC
and
those
easily
But,
made
in
articulated,
what
seems
to
a
complaint
but
be
is
filed
somewhat
clear
is
in
court.
difficult
that
charges
That
of
test
is
application.
presented
to
the
EEOC are to be judged with lenity when making that comparison.
Here,
but
Atkins'
does
EEOC charge outlines
not
described.
specifically
However,
link
a hostile work environment,
race
to
the
environment
the SAC is laden with recitations of racial
slurs and disparate discipline said to have been racially based.
And,
of
there
is the allegation that management wanted to get rid
Atkins,
as
it
had
other
black
drivers.
A
reasonable
investigation of Atkins' specific charges would necessarily have
focused on
the
environment
in
which Atkins
his more specific EEOC charges arose.
the extensive
allegations
worked
and
Consequently,
in which
based on
of race-based employment actions
and
other race-based conduct in the EEOC charge and the allegations
of workplace hostility in the SAC,
it is reasonable to expect
that
have
the
EEOC
investigation
would
unearthed
the
hostile
work environment (if there was one).
Therefore,
the hostile work environment claim in the SAC is
reasonably related to the EEOC charge, and thus there is subject
21
matter
jurisdiction.
under Rule 12(b)(1)
II.
Hence,
the
motion
to
dismiss
Count
III
will be denied.
The 12(b)(6) Motion to Dismiss Atkins'
Retaliation Claim
Having found that there is subject matter jurisdiction over
Count
II
(the
retaliation
consider the Rule 12(b)(6)
at
claim) ,
it
is
appropriate
motion filed by FedEx.
now
to
Docket No.
27
14.
a.
Standard
Rule
12(b) (6)
permits
a
party
to move
for
dismissal
of
a
claim if the complaint fails "to state a claim upon which relief
can
be
granted."
complaint
Fed.
contain
illustrating
"a
that
R.
short
the
Civ.
and
P.
plain
pleader
is
8(a) (2)
requires
statement
entitled
to
of
that
the
a
claim"
relief.
"To
survive a motion to dismiss,
a complaint must contain sufficient
factual
matter,
true,
that
is
plausible
662,
678
(2009)
544,
570
(2007)) .
Courts
Complaint
accepted
are
are
on
as
its
(quoting
to
and
Bell Atl.
assume
true,
face.'"
that
must
all
deny
to
*state
Ashcroft
Corp.
a
v.
v.
Rule
Iqbal,
Twombly,
well-pled
a
claim to
relief
556 U.S.
550
allegations
12(b)(6)
U.S.
in
motion
a
to
dismiss where the well-pled allegations state a plausible claim
for
relief.
Id.
at
67 9.
A
claim
is
"plausible"
when
the
plaintiff pleads facts sufficient to allow the court to draw the
22
reasonable
inference
that
alleged misconduct.
the
Twombly,
defendant
550
U.S.
is
at
liable
556.
A
for
court
the
should
grant a motion to dismiss where the allegations are nothing more
than legal conclusions,
or where they permit a court to infer no
more than a possibility of misconduct.
See
Iqbal,
556 U.S.
at
678-79.
Under
the
Iqbal
and
Twombly
standard,
Atkins
bears
the
burden of alleging facts sufficient to state all elements of his
retaliation claim.9
The elements
Title
VII
"(1)
that
(2)
activity,
are:
that
an
against
[the
between
the
action."
Laughlin
Authority,
& Elec.
519 U.S.
818
engaged in
employment
action
and
(3)
that
was
activity
and
v.
there
the
Metropolitan
149 F.3d 253, 258
Baltimore Gas
denied,
[the plaintiff]
adverse
plaintiff] ,
protected
of a retaliation claim under
CO.,
(4th Cir.
77
F.3d
was
Washington
754
taken
causal
adverse
1998)
745,
a
protected
link
employment
Airports
(citing Hopkins v.
(4th
Cir.),
cert,
(1996)).
9The parties disagree about the appropriate standard to apply to
FedEx's 12(b)(6) motion.
However, Atkins' argument is based on
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), an out-of-date
case that has been effectively overruled by the Supreme Court.
See Francis v.
Giacomelli,
588 F.3d 186,
193
("The standard that
the plaintiffs quotes from Swierkiewicz, however, was explicitly
overruled in Twombly, 550 U.S. at 562-63 (noting that this
standard, first articulated in Conley v. Gibson,
45046 (1957), 'has earned its retirement.'")).
23
355
U.S.
41,
b.
Analysis
FedEx
argues
that
Atkins
"fails
to
link
his
alleged
protected activity to the alleged adverse employment actions to
which he was subjected...[and therefore]
causation
15.
element
of
his
retaliation
claim."
Docket
No.
27
at
Although FedEx is correct in stating that Atkins does not
explicitly allege a causal
and
has not established the
the
retaliation
of
link between his
which
he
protected activity
complains,
it
ignores
that
Atkins has alleged several facts that could reasonably support a
causal connection as to
Count
some of his
retaliation allegations
in
II.
Atkins
allegation
has
alleged
between
altercation
with
facts
his
sufficient
protected
Collins.
evidence" in the SAC that
activity
Atkins
allows
to
also
for a
has
support
and
his
offered
reasonable
a
causal
physical
"additional
inference of a
causal connection between the alleged protected activity and the
alleged retaliation.
with Collins
Atkins has explicitly tied his altercation
to Collins'
anger with
his appeal and being reimbursement
at 528.
While
appeal was
SAC
does
about
months
the
SAC
premised on
explicitly
what
Atkins
before
the
does
not
Atkins
[sic]
allege
believed
SAC
specifically that
the
race discrimination,
the
that
Atkins
was
racial
altercation.
24
The
in
his lost wages."
assert
a complaint of
"for prevailing
complained
to
Collins
discrimination
SAC
also
alleges
a
few
that
Charles Pullen advised Atkins to appeal his three-day suspension
in the days following Atkins'
the
two
men
discussed
conversation with Pullen in which
disparate
discipline.
supports an inference that the appeal was,
Further,
the
SAC
alleges
that
Atkins
This,
in fact,
spoke
if
proved,
race-based.
with
Collins
and
informed Collins that he felt he "had been discriminated against
and harassed by receiving the corrective action."
Collectively,
these facts reasonably support the
there was a causal connection between Atkins'
(i.e.,
speaking
complains of
dismiss
with
Pullen
and
retaliation
claim
altercation with Terrance Collins
respect
discipline,
Atkins'
to
FedEx
is
protected
activity
Thus,
on
the
SAC
alleges
allegations
is
asserting
occurred
that
behavior
he
the motion to
the
March
before
Atkins
of
that
7,
2013
retaliatory
of
the
received
he
initial Corrective Action Form on October 31,
However,
the
is denied.
Atkins'
correct
based
inference that
protected activity
and
(being assaulted by Collins).
Atkins'
With
Collins)
SAC at SI24.
none
the
2012.
complained
SAC at 112.
about
racial
discrimination to Charlie Pullen "sometime during the following
week"
this
[after Atkins
was
November
protected
before
13,
the
final
2012.
activity
Action Form was
received the Corrective Action
Corrective
Thus,
that
the
occurred
issued.
25
SAC
Action
Form was
actually
before
Form and that
the
does
final
issued on
allege
a
Corrective
When Atkins received the original Corrective Action Form on
October 31, 2012,
it stated that "management recommended Atkins'
termination
employment."
from
Id.
at
512.
However,
the
SAC
alleges that the discipline actually imposed as a result of the
Corrective Action Form was a three-day suspension without pay.
Id.
at
that
516.
The
ultimate
discipline was
much
recommended by management before Atkins'
Pullen.
Thus,
whatsoever
on
significantly.
if
his
Atkins'
protected
discipline,
it
For that reason,
in discipline.
support this contention.
had
reduce
any
its
effect
severity
says FedEx, Atkins has alleged
no plausible basis for causation as
discrimination
to
harsh than
conversation with
activity
was
less
it relates to his claims of
FexEx offers
no
authority to
Nor could the Court locate any.
Under
the facts alleged in the SAC, it is plausible that the decision
to impose even the lesser decision was casually connected to the
protected activity.
Therefore,
the motion to
dismiss Count II
as to the retaliatory discipline will be denied.
Finally,
the Rule 12(b)(6) motion will be granted in part
with respect to Atkins'
distress
and
mental
that "by subjecting him to...emotional
anguish,... in
direct
response
to
his
complaining of racial discrimination...FedEx retaliated against
him."
While not elaborated on in Count
II,
describes exactly what events caused Atkins'
and
mental
anguish."
In
the
SAC,
26
Atkins
the SAC elsewhere
"emotional distress
alleges
that
his
emotional distress and mental anguish came "as a result of being
placed on a 'hit list'
over his race,
against
of
on
account
complaining
of
the
his
race
being discrimination
race,
retaliated
discrimination,
finally being assaulted."
being
[sic]
against
for
harassed
and
Id. at 531.
As alleged in the SAC, Atkins was notified of his presence
on management's "hit list" in August 2012.
Id.
at 55.
well before the first alleged protected activity,
in November 2012.
causal
Id. at 514.
connection
presence
on
a
between
"hit
motion to dismiss
list"
virtue
of
granted.
being
his
protected
August
distress
placed
on
the
of
Count
and
his
Accordingly,
the
claim as to retaliation
and emotional
so-called
II
activity
2012.
for failure to state a
remainder
The
which occurred
Thus, Atkins has not pleaded any
in
by the infliction of mental
That is
"hit
passes
anguish by
list"
muster
will
under
be
Rule
12(b) (6) .
CONCLUSION
For
MOTION TO
the
reasons
DISMISS
set
forth
(Docket No.
above,
the
26) will be
DEFENDANT'S
PARTIAL
granted in part and
denied in part.
It is so ORDERED.
/s/
Robert E. Payne
eif
Senior United States District Judge
Richmond, Virginia
Date:
May 22 , 2015
27
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