Shuler v. BrownGreer PLC et al

Filing 24

MEMORANDUM OPINION. See Opinion for Complete Details. Signed by District Judge Henry E. Hudson on 08/20/2015. Memorandum Opinion mailed to Shuler. (ccol, )

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA
Richmond Division

MELODIE V. SHULER,

Plaintiff,
Civil Action No. 3:15cvl70-HEH

v.

PARTNER 3D,etaL,
Defendants.
MEMORANDUM OPINION

(Granting Defendants' Motion to Dismiss)

Melodie V. Shuler ("Plaintiff), an attorney proceeding pro se, filed this suit

alleging discrimination on the basis of her race against Defendant BrownGreer PLC
("BrownGreer"), as well as Breach of Contract and Fraud against both Defendant Partner
JD ("PartnerJD") and BrownGreer. Specifically, Shuler alleges that BrownGreer created
a hostile work environment and retaliated against her by terminating her employment

after she reported purported discrimination to Partner JD and individuals at BrownGreer,
all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through

2000e-17 ("Title VII"). Shuler contends that both parties committed breach of contract
and fraud by not permitting her to work 1,000 hours before terminating her employment.
The matter is before the Court on Defendant Partner JD's Motion to Dismiss

Counts Two and Three for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) (ECF No. 6) and BrownGreer's Motions to Dismiss Count One for
Lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)

(ECF No. 9).1 Shuler has responded, and this matter is ripe for disposition. The Court
will dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before the Court, and oral argument would not aid in the
decisional process.
For the reasons stated herein, the defendants' motions will be granted.
I. BACKGROUND

Plaintiff, an African-American female, worked for BrownGreer from October

2012 to May 2013.2 (Compl. ^ 35, ECF No. 3.) Partner JD, an agency which places
individuals with legal entities on a temporary basis, entered into an Employment

Agreement (the "Agreement") with Plaintiffin October 2012. (Def. Partner JD's Mot. to
Dismiss, Ex. A thereto.) ("Empl. Agr."). That Agreement lists BrownGreer as the client

who would employ Plaintiff. (Id.) Plaintiffdocuments that in February of 2013, she

complained about statements made by two co-workers that she deemed insensitive and
which, she avers, caused her to become stressed and ill from the discriminatory work
environment at BrownGreer. (Compl. U43-44.) Plaintiff explains that after disclosing
the statements, she was moved to an undesirable location in the office and told by a

supervisor to just ignore the women. (Id. at ^45.) Plaintiffcontends that she was
continuously harassed by co-workers, particularly Chad Gardner. (Id. at ffl| 16-19.)
Plaintiff explains that even after she complained of Gardner's racist, nasty conduct,
BrownGreer promoted him to be her supervisor. (Id. at ^ 15.) Plaintiff believed that
1BrownGreer also filed a Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6)(ECF No. 11) in which it adopted the reasoningof PartnerJD.
2Plaintiff consistently misstates heryearof employment throughout herComplaint. As demonstrated by the record
in this case, she was employed from October 2012 to May 2013 not from October 2011 to May 2012.

Gardner's behavior was motivated by his hope of getting her to voluntarily quit. (Id. at H
19.)
In addition to her Title VII claims for hostile work environment and retaliation,
Plaintiff contends that BrownGreer and PartnerJD committed breach of contract and

fraud related to her employment by not permitting her to complete 1,000 hours of work

prior to her termination. (Id. at fflj 64-66, 79-83.)
BrownGreer argues that Plaintiffs hostile work environment and retaliation

claims are procedurally barred. BrownGreer and PartnerJD move to dismiss Counts Two
and Three pursuant to Fed. R. Civ. P. 12(b)(6).
II. STANDARD OF REVIEW

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992)(citation omitted). The Federal Rules of Civil Procedure "requiref] only

'a short and plain statement of the claim showing that the pleader is entitled to relief,' in

orderto 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). A complaint need not assert "detailed factual

allegations," but must contain "more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations

omitted). Thus, the "[fjactual allegations must be enough to raise a right to relief above

the speculative level," id. (citation omitted), to one that is "plausible on its face," id. at

570, rather than merely "conceivable." Id. In considering such a motion, Plaintiffs well-

pleaded allegations are taken as true and the complaint is viewed in the light most
favorable to the plaintiff. T.G. Slater, 385 F.3d at 841 (citation omitted). Legal
conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

As a general proposition, "[pjleadings must be construed to do justice." Fed. R.
Civ. P. 8(d). At the same time, courts recognize that a plaintiff "can plead himself out of
court by pleading facts that show that he has no legal claim." Atkins v. CityofChicago,

631 F.3d 823, 832 (7th Cir. 2011) (Posner, J.) (citing Hecker v. Deere &Co., 556 F.3d
575, 588 (7th Cir. 2009); Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008);
EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007); Orthmann v.

Apple River Campground, 757 F.2d 909, 915 (7th Cir. 1985); and Trudeau v. FTC, 456
F.3d 178, 193 (D.C. Cir. 2006)).
III. DISCUSSION

The defendants seek dismissal on two fronts. First, BrownGreer argues that this

Court lacks subject matterjurisdiction over Shuler's Title VII claim as she has not filed
an administrative charge with the Equal Employment Opportunity Commission. Second,
PartnerJD and BrownGreer challenge the sufficiency of the allegations with respect to
Counts Two and Three.3

3As BrownGreer aptly notes, the Employment agreement, although done for thebenefit of BrownGreer, is entered
into between PartnerJD and Plaintiff. The analysis of whether there is an obligation, however, is equally applicable
to BrownGreer.

A. Exhaustion of Administrative Remedies

Before filing suit, a Title VII plaintiff must file an administrative charge with the
EEOC. Chacko v. Patuxent Institution, 429 F.3d 505, 506 (4th Cir. 2005). The charge

"frames the scope of future litigation," and '"[o]nly 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 maintained in a subsequent
Title VII lawsuit.'" Id. (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,
963 (4th Cir. 1996)). "[T]he scope of a Title VII lawsuit may extend to any kind of
discrimination like or related to allegations contained in the charge and growing out of

such allegations during the pendency of the case beforethe Commission." Hill v. Western
Electric Co., 672 F.2d 381, 390 n.6 (4th Cir. 1982) (citations and internal quotation
marks omitted).

Plaintiff has had extensive time to file her purported administrative charge to the
EEOC in this action. Indeed, by Order (ECF No. 23) entered on August 10, 2015, the

Court granted Plaintiff an additional seven days to file documentation of her
administrative charge. She has failed to do so. The burden of proving subject matter

jurisdiction, when challenged, resides with the plaintiff. See Richmond, Fredericksburg
& Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Because Plaintiff

has failed to demonstrate that she filed an administrative charge with the EEOC before

filing her Title VII claim, the Court will dismiss Count One without prejudice.

B. Sufficiency of the Claims
1. Breach of Contract

In Count Two, Plaintiff asserts that the employment agreement entered between

her and PartnerJD would permit her to complete 1,000 hours of work, and thus
BrownGreer's decision to terminate her employment prior to the completion of those

hours constituted a breach of contract.4 The Agreement's terms are straightforward. The
Agreement states that Plaintiffs "services [fjhereunder shall be 'at will' and provided
only on an as needed basis without any commitment as to minimum use by PartnerJD,

LLC orClient." (Empl. Agr. § 3.).5 The Agreement also notes that the Plaintiff
"acknowledges and agrees that th[e] Agreement may be terminated at any time by either
party with or without cause or notice." Id.
The Work Schedule attached to the Employment Agreement, which pertains to her

position at BrownGreer, states that the Plaintiff "is employed at will." (Partner JD's Mot.
to Dismiss, Ex. B thereto.) Further, the Work schedule notes that the "[t]he "Estimated
Start Date" and "Estimated End Date" are estimates and do not represent a guarantee or

promise of employment for any period of time." Id. Lastly, the Agreement contains an
integration clause providing that "the Employment Agreement constitutes the entire

4In her opposition, Plaintiffpresents, for the first time, a document entitled "EmployerQuestionnaire" that is
released to the Social Security Services Administration. The Court will not consider the document for purposes of
this Motion as it was untimely raised. Moreover, the document would be barred by the parol evidence rule. The
Employment Agreement signed on October 7,2012 is the full agreement between the parties.

5Although the Plaintiff does notattach the Employment Agreement orNovember 12,2012 email to her Complaint,
Defendant PartnerJD attaches those documents to its motion to dismiss. The Court may consider documents attached

to the complaint, see Fed. R. Civ. P. 10(c), as well as those attached to the motion to dismiss, so long as they are
integral to the complaint and authentic. See Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir. 2006).

agreement between the parties with respect to the matters contained [therein]." (Empl.
Agr. § 8.)

Plaintiff argues that the email she received in November concerning the opening
for the assignment she received with BrownGreer supplants the Employment Agreement
which immediately pertained to BrownGreer's work on a City of Richmond matter.
(PL's Opp. to Mots, to Dismiss 2, ECF No. 20.); (Partner JD's Mot. to Dismiss, Ex. B
thereto, Nov. 2, 2012 Email). The email pertains to a separate, unrelated assignment in

support of claims review pertaining to the BP oil spill. The Employment Agreement
provides for assignment on a task by task basis, each potentially inviting different time
commitments. It states explicitly that Plaintiff "agrees to provide, on an as needed basis,
contract attorney services as may be required by PartnerJD, LLC from time to time."
(Empl. Agr. § 1.) The November 2, 2012 email pertained to another assignment, but did
not override the terms of the Agreement.

"The elements of a breach of contract action are (1) a legally enforceable
obligation of a defendant to a plaintiff; (2) the defendant's violation or breach of that
obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation."
Filak v. George, 267 Va. 612, 619 (2004) (citations omitted). The existence of a legally

enforceable obligation is a question of law, not fact. Id.
"In Virginia, an employment relationship is presumed to be at-will, which means
that the employment term extends for an indefinite period and may be terminated by the

employer or employee for any reason upon reasonable notice." County ofGiles v. Wines,

262 Va. 68, 72 (2001).6 "This presumption may be rebutted, however, if sufficient
evidence is produced to show that the employment is for a definite, rather than an
indefinite, term." Id. (citation omitted).

No reasonable construction of Employment Agreement creates an obligation on
PartnerJD or BrownGreer's part to employ Plaintiff for 1,000 hours before her contract

becomes a truly at-will employment. Plaintiffs Opposition maintains that the

Employment Agreement does not apply because she was brought back to BrownGreer to

complete a different task than that envisioned by the agreement. Despite Plaintiffs
representation to the contrary, the Agreement is clear. Plaintiffwould "provide, on an as
needed basis, contract attorney services as may be required by PartnerJD, LLC from time

to time." (Empl. Agr. § 1.) The client envisioned by the agreement is BrownGreer. The
November 2012 email, again not attached to the Complaint but directly referenced
therein, does not supplant the terms of the Employment Agreement. Moreover, assuming

arguendo that email was of particular relevance, it too does little to provide Plaintiffany
relief. It neither expressly displaces the Plaintiffs at-will status nor indicates that the

Plaintiff is guaranteed anything other than the potential for conversion to a full time
employee after completion of 1,000 hours. As evidenced by the Employment

Agreement's explicit terms, there was no legally enforceable obligation on behalfof
BrownGreer or PartnerJD to employ Plaintiff for 1,000 hours before she could be
terminated. Therefore, Plaintiff fails to state a claim for breach of contract.

6The Supreme Court of Virginia has held that a narrow public policy exception exists to this traditional rule.
Bowman v. State Bank ofKeysville, 229 Va. 534, 540 (1985). The Court finds such a narrow exception inapplicable
on these facts.

2. Fraud7

In Caperton v. A.T. Massey Coal Co., 285 Va. 537, 553 (2013) (marks omitted),
the Virginia Supreme Court reiterated the elements of common law fraud : "[A] false
representation of a material fact; made intentionally, in the case of actual fraud, or
negligently, in the case of constructive fraud; reliance on that false representation to

[plaintiffs] detriment; and resulting damage." To establish fraud, "it is essential that the
defrauded party demonstrates the right to reasonably rely upon the misrepresentation."
Metrocall ofDelaware, Inc. v. Continental Cellular Corp., 246 Va. 365, 374 (1993).
Plaintiffs fraud claims are tethered to her breach of contract claims. That is,

Plaintiff argues that Partner JD and BrownGreer made promises or statements they knew,
or should have known, were false about her job, namely that "if [she] fulfilled terms of
the term to hire contract she would be hired as a full-time permanent employee." (PL's

Opp. to Mots, to Dismiss \ 72.) In particular, Plaintiff points specifically to two

statements ofAngela Davis ("Davis"), a human resources employee atBrownGreer.8
Plaintiff alleges that in March of 2012, Davis "made a false representation to [Plaintiff]...
to induce [her] to accept a position with the company" by stating that "company wanted
to hire Plaintiff." (Id. at \ 79.) Further, Plaintiff alleges that, in May of 2012, Davis
stated to Plaintiff that she "would be hired as a regular employee after working 1,000
hours and that it was anticipated that [Plaintiff] would be hired as a regular employee

7Plaintiffcaptions Count Three, "Fraud [and] Misrepresentation." The Court construes the invocation of
misrepresentation as a constructive fraud claim.

8There are no direct statements attributed to PartnerJD or its employees. Presumably, Plaintiff is arguing that
PartnerJD's email on November 2, 2012 constitutes a fraudulent representation because she understood it as
entitling her to 1,000 hours.

within about a month as she has[d] reached over 900 hours of work as a contract to hire
employee." (Id. at t 80.)

The record before the Court demonstrates very clearly that the Plaintiff had no

right reasonably to construe any forecast or future employment as a firm expectation
legally binding PartnerJD or BrownGreer. As explained earlier, the scope and language
of the Agreement is clear. Plaintiffs at-will employment is precisely the focus of an
agency like PartnerJD. The notion that BrownGreer or PartnerJD intended to create
anything other than an at-will employment structure is simply unreasonable. Moreover,
the statements attributed to Davis can hardly be viewed as misrepresenting a material fact

with regards to her employment. Notwithstanding the lack of reasonable reliance,
Plaintiffs fraud claims are also barred by the economic loss rule. It is well-settled in

Virginia that a party may not seek to recover tort damages "suffered as a result of the
breach of a duty assumed only by agreement, rather than a duty imposed by law." Filak,
267 Va. at 618. Here, the Plaintiff seeks to impermissibly convert her breach of contract
claim to one of fraud. It is apparent that "whatever duties [the defendants] may have
assumed arose solely from the parties' [Agreeement]." Filak, 267 Va. at 618-19.

Accordingly, the economic loss rule precludes Plaintiffs fraud claims.
IV. CONCLUSION

In sum, the Court finds that Plaintiff failed to state a claim for breach of contract
or fraud and has failed to demonstrate that she exhausted her administrative remedies

with respect to her Title VII claims. Accordingly, the defendants' Motions to Dismiss

10

will be granted and the case will be dismissed without prejudice.
An appropriate Order will accompany this Memorandum Opinion.

AM*

/s/

Henry E. Hudson
United States District Judge

rv
Date: HUS.20 lOH
Richmond, Virginia

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