Hinton v. Virginia Union University

Filing 10

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 5/4/2016. (sbea, )

~

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

\.:,

IL

n

5 2816

MAY

Plaintiff,
Civil Action No. 3:15cv569

VIRGINIA UNION UNIVERSITY,
Defendant.

MEMORANDUM OPINION

This matter is before the Court on Defendant Virginia Union
University's MOTION TO DISMISS COMPLAINT (Docket No. 3). For the
reasons

stated below,

the motion

will

be

granted

in part

and

denied in part.

BACKGROUND

Plaintiff Terry Hinton
Virginia

Union

University

("Hinton")
("VUU")

Title VII sex discrimination claim;
claim;

(3)

Equal

Pay

are

(2)

four

counts:

(1)

Act

claim.

forming

pleaded

(Compl.,

the basis
in

the

Docket

for

a

a Title VII retaliation

a Title VII retaliatory harassment claim; and (4)

allegations
they

filed this action against

alleging

No.

1).

The

an

factual

these claims are set out as

Complaint,

according

all

favorable

inferences to the Plaintiff.
Hinton,

an

openly

gay

male,

has

been

·~
TI

CLERK. U.S. DISTRICT COURl
RICHMOND VA

TERRY HINTON,

v.

,,
" \

employed

administrative assistant at VUU since October 2006.

as

an

(Compl.

'Il'Il

4-6).

In early 2008,

declaration

Hinton provided deposition testimony and a

in support

of a

former VUU professor who filed

Title VII religious discrimination claim against VUU;
was "resolved."
his

of

'.ll'.ll 7,

(Compl.

own

Charge

In 2008,

9).

Discrimination

Opportunity Commission

("EEOC") ;

with

a

the case

Hinton also filed

the

Equal

Employment

the complaint was "resolved."

(Compl. <JI<JI 8-9).
Hinton alleges that he was

(and is to this day}

paid less

than his fellow female administrative assistants, noting that he
is

"the

only male

Affairs

Department

comparable female
Indeed,

administrative
and

is

assistant

paid

less

in

than

VUU' s
the

Academic

four

most

administrative assistants in the Department.

three of the four individuals have less seniority than

Hinton and the fourth has only been with VUU for one more month
than

Hinton."

seniority,

( Compl.

merit,

'Jl

20) .

quantity

"There

are

or

quality

of

no

differences

production"

in

between

Hinton and the female administrative assistants, and "[t)he only
meaningful

difference

between

administrative

assistants"

gender.

(Compl.

<]!

unequal

pay

that
was."

his

to

his

"female

(Comp!.

20).

<]!

and

Hinton

is

vuu

comparable
the

difference

in

In May 2013, Hinton "raised the issue of

then-supervisor,"

comparators
22) .

four

the

That

were

unnamed

2

complaining

paid

higher

supervisor

specifically

wages
informed

than

he

Hinton

that VUU would not increase his wage to match that of his female
counterparts.

(Comp!. en 22}.

Before August 1, 2013, Hinton had never been reprimanded or
disciplined for talking about sex with co-workers, lending money
to or borrowing money from coworkers,

talking about "University

business,

fellow

salary
about

such

as

the

information
personal

transfers

of

VUU

matters

of

employees,"

with

fellow

or

VUU

employees
"generally

employees."

or

the

talking

(Compl.

en

12) .
However,
("Green")

on or

became

Science,

and

about August

Interim

Dean

Technology,

direct supervisor.

a

(Compl.

of

move
<]]

1,

2013,

the
that

Dr.

School
also

Latrelle Green
of

made

Mathematics,
her

Hinton's

10). Green was "aware of Hinton's

past outspoken support for his own civil rights and the rights
of others.
(Compl.

<]]

She was also aware of Hinton's prior EEOC charge."
11).

On August

Hinton to stop engaging
August 29,

2013,

6,

2013,

Green

"verbally counseled"

in "petty gossip."

Green "told

[Hinton]

(Compl.

<:n

13) .

On

that he had already been

warned to stop engaging in 'drama and recurring gossip' and told
him to cease." (Comp!.

'11

14). On September 6, 2013, Green "wrote

Hinton a letter in which she detailed many instances of alleged
'unprofessional misconduct.'"
as

a

file.,,

written
( Compl.

reprimand
en 15) .

and

(Compl.
was

<]]

placed

15). "The letter served
in

Hinton's

personnel

Hinton Is Complaint states that he engaged
3

in

no

unprofessional

conduct,

and

that

"most

of

the

identified ... are false or grossly exaggerated." (Compl.

items
<JI

16).

At some unspecified point after September 6, 2013, Green refused
to let Hinton take classes at Virginia Commonweal th University
( "VCU")

(Compl.

en 19) ,

notwithstanding that other VUU employees

had been allowed to take classes at VCU for some time.

(Compl. en

34). Hinton characterizes this refusal as "retaliation." (Compl.

'ii 19) .
Hinton

filed

a

second

EEOC

charge

at

in

2013,

but

the

Complaint does not state when the 2013 charge was filed.

VUU

states

10,

2013,

that
in

the

2013

response

to

EEOC
Dr.

charge
Green's

was

filed

reprimands.

on

September

(Def.'s Mem 10;

Docket No. 4, Ex. C) . 1
At some unspecified point before August 2015,
to be Hinton's supervisor.

Hinton's subsequent supervisor gave

Hinton permission to take classes at VCU.
In

August

2015

Green ceased

(after

Green

(Compl. 'ii 19}.

ceased

to

be

Hinton's

supervisor), Green "candidly admitted to Hinton that one of the
reasons she gave Hinton the September 6,
was that Dr.

Claude Perkins

("Perkins") ,

1

2013 reprimand letter"
the President of VUU,

Hinton does not contest that the Court may consider the text
of Hinton's September EEOC charge even though that document was
not part of the Complaint. See also Atkins v. FedEx Freight,
Inc. No. 3:14CV505, 2015 WL 34444870, *3, n.4 (E.D. Va. May 28,
2015).

4

"told her to do so because he had a problem with Hinton's sexual
orientation." (Comp!. 'Il 18).
On these

facts,

four counts against vuu.

Hinton presents

Count I alleges Title VII discrimination on the basis that:

(1)

Hinton

against

sex

August

and

did not

like

is

entitled

discrimination;

to

(2)

Hinton

September 2013 because
his

sexual

reprimand,

Title

was

protection

reprimanded

Perkins

(VUU' s

and

as

orientation;
Hinton

VII's

suffered

(3)
a

"loss

president)
a

of

direct

result

potential

opportunities" and various emotional harms.
Count II alleges Title VII

in

against

(Comp!.

'Il'Il 26-29).

retaliation on the basis that:

Hinton

by

disciplining

him

that

occupational

Hinton engaged in protected activities in 2008 and 2013;
retaliated

of

in

( 1)

(2) VUU

August

and

September 2013 ("based on false allegations and in a manner that
was disparate to other VUU employees") and refusing to allow him
to

take

VCU

retaliation,

classes;

and

(3)

as

a

direct

result

of

that

Hinton suffered a "loss of potential occupational

opportunities" and various emotional harms.

(Comp!.

'Il'Il

33-36) .

Count III alleges Title VII retaliatory harassment, on the basis
that:

( 1)

Hinton engaged

2013;

(2)

VUU retaliated against Hinton by disciplining him in

August and September 2013

in

protected activities

in

2008

and

("based on false allegations and in a

manner that was disparate to other VUU employees") and refusing
to allow him to take VCU classes; and (3) as a direct result of

5

that

retaliatory

potential
harms.

harassment,

occupational

(Compl.

'il'il

Hinton

suffered

opportunities"

39-41) . 2

Count

and

IV

a

"loss

various

alleges

that

of

emotional
Hinton,

a

male, was paid less than his comparable female counterparts.
VUU filed this Motion to Dismiss
a Memorandum of Law in Support

(Docket No. 3) along with

(Docket No.

4)

{"Def.'s Mem.").

VUU seeks to dismiss all four counts pursuant to Fed. R. Civ. P.
12 (b) (6)

(failure to state a claim) and Fed. R. Civ. P. 12 (b) (4)

(insufficient

process} .

Opposition (Docket No.
Reply (Docket No. 9)

filed

Plaintiff

7)

Memorandum

a

in

("Pl.'s Opp."}, and Defendant filed a

("Def.' s Reply").

DISCUSSION

A

motion

challenges

the

to

dismiss

legal

under

sufficiency

Fed.
of

R.
a

R.

Civ.

P.

8(a) (2)

"requires

P.

complaint.

Alternative Resources Corp., 458 F.3d 332,
Fed.

Civ.

only

338
a

12(b) (6)
Jordan

v.

(4th Cir. 2006).
short

and

plain

statement of the claim showing that the pleader is entitled to
relief,

in order to give the defendant fair notice of what the

claim is and the grounds upon which
Evans v.
F. 3d

582,

Maryland Dep 1 t
585

(4th

of Transp.,

Cir.

2015)

2

it

rests." McCleary-

State Highway Admin. ,

(citing

Bell

Atl.

Corp.

780
v.

The facts underlying Counts II and III are identical, except
that Hinton characterizes Green's actions as "retaliation" in
Count Two and "retaliatory harassment" in Count Three.
6

Twombly, 550 U.S.

544,

555,

127 S. Ct.

1955,

167 L. Ed.

2d 929

(2007)).
When deciding a motion to dismiss under Rule 12 (b) ( 6),
court

"draw[s]

all

reasonable

plaintiff." Nemet Chevrolet,

inferences

Ltd.

v.

in

favor

of

Consumeraffairs.com,

a

the
Inc.,

591 F.3d 250, 253 (4th Cir. 2009). However, while the court must
"will

accept

the

pleader's

description

"any conclusions that can be

of

what

happened"

reasonably drawn therefrom,

and
the

/1

court "need not accept conclusory allegations encompassing the
legal effects of the pleaded facts," Charles A. Wright & Arthur
R. Miller,

Federal Practice and Procedure§ 1357

Chamblee v.

Old Dominion Sec.

WL 1415095,

*4

(E.D.

Va.

true

a

legal

accept

as

Co.,

2014).

L.L.C., No.

Nor is

conclusion

(3d ed.1998);

3:13CV820,

the court

2014

required to

unsupported

by

factual

allegations. Ashcroft v. Igbal, 556 U.S. 662, 678-79, 129 S. Ct.
1937,

173 L.

Ed.

2d 868

(2009).

"Twombly and Igbal also made

clear that the analytical approach for evaluating Rule 12(b) (6)
motions

to

allegations

dismiss
that

requires

amount

to

courts

mere

to

reject

formulaic

conclusory

recitation

of

the

elements of a claim and to conduct a context-specific analysis
to

determine

whether

plausibly suggest an
supra;

Chamblee,

the

well-pleaded

enti tlernent

supra.

In

sum,

factual

to

relief.

a

12 ( b) ( 6)

/1

allegations

Wright

&

Miller,

motion

should

be

granted if, "after accepting all well-pleaded allegations ... as
7

true and drawing all
facts

in

the

reasonable

plaintiff 1 s

factual

favor,

it

inferences

appears

from those

certain

that

the

plaintiff cannot prove any set of facts in support of his claim
entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d
231, 244

(4th Cir. 1999).

These principles govern resolution of VUU' s motion.

Each

count will be considered in turn.

A.

Count I: Title VII Discrimination
VUU' s

motion

will

be

granted

as

it

pertains

to

Count

I

because Title VII does not afford a claim for sexual orientation
discrimination and thus Hinton does not belong

to a

protected

class. In the alternative, Hinton does not plead that VUU took a
cognizable

"adverse

employment

action"

against

him."

Count

I

will be dismissed.

1.

Title

VII

Does

Not

State

a

Claim

for

Sexual

Orientation Discrimination
VUU seeks dismissal of Count I because Title VII affords no
predicate

for

a

claim of

discrimination

on

account

of

sexual

Title VII prohibits discrimination based on "race,

color,

orientation.

religion,

sex,

or

national

origin."

( 2) (a) ( l) .

It is explicitly the law of the Fourth Circuit that
8

42

U.S.C.

§§

2000e-

Title

VII

does

not

protect

against

discrimination

based

on

sexual orientation. Murray v. N. Carolina Dep't of Pub. Safety,
611 F. App'x 166 (4th Cir. 2015)
Hut

of America,

also,

e.g.,

3d 588,

Inc.,

Lewis v.

589

Inc.,

Va. Apr. 2, 2013)
Hinton

F.3d

138,

143

(4th Cir.

High Point Reg'! Health Sys.,

(E.D.N.C.

of Virginia,

first,

99

(relying on Wrightson v. Pizza

2015)

No.

(same);

3: 12CV600,

Henderson v.

1996);

see

79 F. Supp.

Labor Finders

2013 WL 1352158,

at *4

(E.D.

(same).

attacks

the

law

of

the

circuit

on

two

grounds:

that Wrightson has no precedential value, and second that

Wrightson
decision.

has

been

essentially

superseded

by

a

2015

EEOC

(Pl.'s Mem. 5-11).
(a)

Wrightson Applies In This District

Hinton challenges the precedential value of Wrightson in an
attempt to dislodge the cases that have restated or relied upon
Wrightson.
that

According to Hinton,

uTitle

VII

does

not

the text

afford

a

in Wright son stating
cause

of

action

for

discrimination based upon sexual orientation" is dicta because
the

case

harassment.

actually

turned

on

issues

of

same-sex

sexual

(Pl.' s Mem. 5) . 3

3

Hinton also stresses that Wrightson's holding on same-sex
discrimination was overruled by the Supreme Court in Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998,
140 L.
Ed.
2d 201
(1998).
Because Oncale did not touch
Wrightson's rule that Title VII does not protect against
discrimination based on sexual orientation, it is not accurate
9

Although Wrightson's rule began its life as dicta, the rule
has subsequently been incorporated in a substantive manner into
the

holdings

of

several

district

courts

within

the

Fourth

Circuit, this Court included. Henderson, 2013 WL 1352158, at *4;
see also Dawkins v.
1580455,

at

*4

Richmond Cty.

(M.D.N.C.

May

4,

Sch.,

No.

2012);

1:12CV414,

Dudley

v.

2012 WL

4-McCar-T,

Inc., No. 7:09-CV-00520, 2011 WL 1742184, at *4

(W.D. Va. May 4,

2011) aff'd,

Fenner v. Durham

458 F. App'x 235

Cty.

Det. Ctr., No.

Nov.

3,

2010);

1:10CV369, 2010 WL 4537850,

Wamsley v.

WL 2819632, at *l (N.D.
Wrightson

has

(4th Cir. 2011);

w.

also

Lab Corp.,

No.

at *2

CIV.A.

(M.D.N.C.

1:07CV43,

2007

Va. Sept. 26, 2007).
been

noted

or

relied

upon

by

other

federal circuit courts in formulating holdings that subscribe to
Wrightson' s

dicta.

In Simonton,

relying

in part

on Wrightson,

the Second Circuit upheld the dismissal of a sexual orientation
discrimination

claim

under

Rule

12(b)(6),

holding

that

"[b]ecause the term 'sex' in Title VII refers only to membership
in a class delineated by gender,

and not to sexual affiliation,

Title VII does not proscribe discrimination because of sexual
orientation." Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000)
(citing DeCinto v.

Westchester County Med.

Ctr.,

807 F. 2d 304,

306-07 {2d Cir. 1986). Citing Simonton and Wrightson,

the Tenth

to say that the Supreme Court overruled the portion of Wrightson
which is relevant here.
10

Circuit

followed

Mexico,

413

suit

in

F.3d 1131,

Medina

1135

v.

Income

(10th Cir.

Support

2005).

Div.,

Those decisions

reflect accurately the text and reach of Title VII.
reflect

the

law

in

this

district

that

New

Title VII

They also

provides

no

claim for discrimination on account of sexual orientation.
(b)

The EEOC Has Not Displaced Wrightson

Hinton also argues that,

even if Wrightson is settled law,

Wrightson was displaced by a July 2015 EEOC ruling that Title
VII protects against discrimination based on sexual orientation.
(Pl.'s

Opp.

7-11)

(relying

on

Baldwin

v.

Foxx,

EEOC

DOC

0120133080, 2015 WL 4397641, at *l (July 16, 2015)).
EEOC interpretations of Title VII are entitled to Skidmore
deference at most - that is, "deference to the extent [that they
have] the power to persuade.n Vill. of Freeport v. Barrella, No.
14-2270-CV,

2016

WL

611877,

at

*11

(2d

Cir.

(relying on Townsend v. Benjamin Enters.,

Feb.

16,

Inc., 679 F.3d 41,

(2d Cir. 2012); Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133

S.Ct.

2517,

2533,

TCoombs

& Associates,

5601885,

at *24 n.12

given

deference

persuade).
claims

in

The
the

only

LLC,
(E.D.
to

district
wake

186 L.Ed.2d

of

No.

Va.
the

503

CIV.A.

Sept.
extent

22,

(2013));

2015)

that

it

has

have

decided

Foxx

have

also

given

11

to

Crump

v.

2015

WL

(EEOC guidance

that

deference

the

53

U.S. -

2:13CV707,

courts

interpretation of Title VII

2016)

power
Title
the

to
VII

EEOC's

extent that

the

EEOC' s
Grp.,

decision
Inc.,

(S.D.N.Y.

is

No.

Mar.

15
9,

~,

persuasive.
CIV.

3440

2016);

Christiansen

(KPF),

Videckis

2016
v.

2015

2015);

Felder Servs., LLC, No.

Isaacs v.

6560655, at *3-4

8916764,

at

*8

Omnicom

951581,

Pepperdine

CV1500298DDPJCX,

WL

WL

v.

(C.D.

at

*15

Univ.,

No.

Cal.

Dec.

2:13CV693-MHT,

15,

2015 WL

(M.D. Ala. Oct. 29, 2015); Dew v. Edmunds, No.

1:15-CV-00149-CWD,

2015

2015);

Coll.

Burrows v.

WL

5886184,

of Cent.

at

*9

Florida,

(D.
No.

Idaho

Oct.

8,

5: 14-CV-197-0C-

30PRL, 2015 WL 5257135, at *2 (M.D. Fla. Sept. 9, 2015).
District courts have,
the EEOC or to fol low the
their

own

districts.

however,
law of

Christiansen

split on whether to follow
their regional
and

Burrows

circuits and

noted

that

the

EEOC's decision was entitled to deference to the extent that it
was persuasive,

but found that the decision could not displace

the explicit holdings of their regional circuit court
case of Christiansen}

or of their own district

(in the

(in the case of

Burrows). Christiansen, 2016 WL 951581, at *15; Burrows, 2015 WL
5257135, at *2. As the Christiansen court noted:

(1) the conduct

before

broader

it

landscape

was
has

"reprehensible";

undergone

protection against

significant

(2)

"(t]he

changes"

toward

legal

increased

sexual orientation discrimination in recent

12

years; 4

and

current

( 3)

rules

recognizing

Title

VII

discrimination claims based on sexual stereotyping but barring
claims

based

on

sexual

incoherent.

Christiansen,

that

still

court

orientation

2016 WL 951581,

concluded

that

that,

discrimination 5
at
under

*13-15.

are

However,

binding

Second

Circuit precedent, 6 it could not adopt the EEOC's position.
By
position

contrast,
with out

Isaacs

and

addressing

Videckis
governing

adopted
precedent

the

EEOC's

from

the

regional circuit or their own district. Isaacs, 2015 WL 6560655,
at *3-4; Videckis, 2015 WL 8916764, at *8. The Eastern District
of

New

York

adopted

the

EEOC's

position,

notwithstanding

explicit Second Circuit law to the contrary. Roberts v. United
Parcel

Serv.,

Inc.,

115

F.

Supp.

3d

344

(E.D.N.Y.

2015)

(surveying the federal and local sea-change in attitudes towards

4

Pointing particularly to United States v. Windsor, 133 S. Ct.
2675, 186 L. Ed. 2d 808 (2013) and Obergefell v. Hodges, 135 S.
Ct. 2584, 192 L. Ed. 2d 609 (2015).
5

The Second Circuit imposed such a rule in Simonton, 232 F.3d
at 33. The Fourth Circuit has never explicitly embraced such a
juxtaposition, though it has held that sexual discrimination is
non-actionable, Wrightson, while leaving open the possibility
that sexual stereotyping is actionable. M.D. v. Sch. Bd. of City
of Richmond, 560 F. App'x 199, 203 (4th Cir. 2014). This Court
also employed such a distinction in Henderson, 2013 WL 1352158,
at *4.
6

Simonton, 232 F.3d at 33-25.
13

sexual orientation discrimination) . 7 For that reason, Roberts is
of no effect, because a district court simply cannot change the
law of the regional circuit.
Finally,

the

Fourth

Circuit

cited

Wrightson's

rule

approvingly even after the EEOC decision. Murray v. N. Carolina
Dep't of Pub. Safety, 611 F. App'x 166 (4th Cir. 2015). However,
Murray ( 1) is unpublished,

(2) cites Wrightson in dicta,

( 3) is

a brief per curiam opinion with no legal analysis of its own;
and (4) shows no sign that the Fourth Circuit was even aware of
the EEOC decision in Foxx when it issued Murray. Nonetheless, at
the

margins,

Murray

makes

clear

that

Wrightson

is

still

considered to be the basis for decision in the jurisprudence of
the Fourth Circuit and by district courts in this circuit.
More

importantly,

the

reasons

offered

in

decisions

that

have adopted the EEOC's position are matters that lie within the
purview of the legislature,
creation of Congress and,

not the judiciary.
if Congress

is

Title VII is a

so inclined,

it can

either amend Title VII to provide a claim for sexual orientation
discrimination or leave Title VII as presently written.
not

the

province

of

unelected

jurists

to

effect

It is

such

an

amendment.

7

The remaining case dealing with the EEOC decision, Dew, is
complicated by immunity questions. Dew, 2015 WL 5886184, at *9.

14

In

sum,

Title VII

discrimination claims,
persuasive

power

of

does

not

encompass

sexual

orientation

and cannot be supplanted by the merelythe

EEOC's

decision.

For

the

foregoing

reasons, Hinton does not state a claim for discrimination under
Title VII and Count I will be dismissed.

2.

Alternatively, Count I Fails to Adequately Plead

an Adverse Employment Action
Ordinarily, it is preferable to avoid alternative holdings.
Karsten

v.

States,

Inc.,

Richmond,
F.3d 578
the

Kaiser

875

Found.

36 F.3d 8,
F.

Supp.

(4th Cir.

Heal th
11

(4th Cir.

1124,

1996).

Plan

1139

However,

of

the

orientation

discrimination

(E.D.

Va.

1994},

claims

are

cognizable

Hinton

not

pled

aff'd,

78

respecting whether

it is prudent also to consider VUU' s
adequately

City of

given the evolving state of

Title VII,
has

Atlantic

1994); Amato v.

law and split district court decisions

sexual

Middle

the

adverse

under

argument that

employment action

element of a Title VII discrimination claim.

(a)

Preliminary Issue On Pleading Requirements

A plaintiff can prove Title VII unlawful discrimination in
one

of

two

ways:

either with

direct

15

evidence

or

through

the

"prima

f acie"

method

(also

called

"burden

shifting"

or

the

McDonnell Douglas framework) . 8
First, in the "direct" method, a plaintiff can provide (1)
direct or
against

indirect

plaintiff

motivated

(3)

an

evidence of
for

intentional discrimination

belonging

adverse

to

employment

Lockheed Martin Logistics Mgmt.,
Cir.

2004)

2 532;
243,

Inc.,

protected

354

(4th Cir. 2015)

Univ.

class,

~'

action.

of Maryland-E.

which

Hill

F. 3d 277,

abrogated on other grounds by Nassar,

see also Foster v.
249

a

(2)

284

v.
(4th

133 S. Ct. at

Shore,

787 F. 3d

(recognizing such abrogation}. "Direct

evidence may include ... statements by an employee's supervisors
that are generally discriminatory or statements by supervisors
that

indicate

employee's

race or
Courts

claims
tantamount
3:15CV37,

that

to

their
sex,

or

actions

WL

motivated

in retaliation against

by

the

filed

EEOC

routinely consider indirect evidence to be

circumstantial

2015

were

5147067,

evidence."

at

*3

(E.D.

Lee

Wade,

Aug.

Va.

v.

31,

No.
2015)

(adopting report and recommendation); see also Martin v. Scott &
Stringfellow,

Inc.,

643 F. Supp.

2d 770,

782

{E.D. Va.)

[direct]

evidence,

aff 1 d,

352 F. App'x 778 (4th Cir. 2009).
Second,
may

prove

"in the absence of
unlawful

discrimination

8

under

the

a plaintiff

burden-shifting

Most importantly for this case, under either method, Hinton
must establish both that ( 1) he belonged to a protected class
and (2) his employer took adverse employment action against him.
16

framework established in McDonnell Douglas Corp.
U.S.

792

(1973) ." Lee,

2015 WL 5147067,

at *3.

v.

Green,

411

"To establish a

prima facie case of race discrimination under McDonnell Douglas,
a

plaintiff

class;

( 2)

action;

must

demonstrate

'(1)

membership

satisfactory job performance:

and

(4)

different

treatment

{3)

in

a

protected

adverse employment

from

similarly

situated

employees outside the protected class.'" Goode v. Cent. Virginia
Legal

Aid

Sec'y,

Inc.,

807

F.3d

619,

626

(4th

Cir.

2015)

(quoting Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190
(4th Cir.

2010),

aff'd sub nom. Coleman v.

Maryland,

132 S.

Ct.

plaintiff makes
shift

to

the

nondiscriminatory

the

1327,
prima

182 L.
facie

employer
reason

case,

2d 296
"the

articulate

to
for

Ed.

Court of Appeals of

the

employee 1 s

(2012)).
burden

some

Once a

then

must

legitimate,

rejection,"

after

which the plaintiff must "be afforded a fair opportunity to show
that petitioner's stated reason for respondent's rejection was
in fact pretext." McDonnell Douglas, 411 U.S. at 802-04. 9
In light of this,

Hinton is not entirely correct in citing

Coleman for the proposition that,

in the employment context, "a

plaintiff is not required to plead facts that constitute a prima
facie case in order to survive a motion to dismiss." (Pl.'s Opp.
4)

(quoting Coleman,

626 F.3d at 190). At the same time, VUU is

9

Neither party has briefed on legitimate, non-discriminatory
reasons. Instead, the parties' papers are firmly fixated on the
elements of a prima facie claim.
17

not

entirely correct

in quoting

Lee

for

the

proposition that

"the plaintiff must plead sufficient facts to allow the court to
reasonably infer a prima facie case." (Def.'s Mem.

a

plaintiff

must

plead

inferences are drawn
178 F.3d at 244,
has

pled a

facts

that,

when

in the plaintiff's

4). Instead,

all

reasonable

~,

favor,

Edwards,

would permit finding either that the plaintiff

"direct"

case or

that

plaintiff has

made

a

prima

facie case.
In this case, Hinton alleges that Green told him that "one
of the reasons she gave Hinton the September 6,
letter was that . . .
because
(Comp!.

he
q(

had
18).

a

the President of VUU
problem

Assuming

with

that

Hinton's

there

sexual orientation discrimination
previous

section,

evidence

that

there

would

is

not)

require

(]

the

is

a

is

court

told her to do so

sexual

(which,
that

2013 reprimand

orientation."

Title VII
as

discussed in

the
to

claim for

sort

of

analyze

the

direct

Hinton's

complaint by the direct evidence method.
Even under the direct

evidence method,

plead facts that would allow the court,

Hinton must still

drawing all reasonable

inferences in Hinton's favor, to conclude that Hinton adequately
pled both that Hinton is a part of a protected class as a gay
man,

and also that VUU took adverse employment action against

Hinton.
from

Hill,

the

354 F.3d at 284; Edwards,

issue

of

protected

class,
18

as

178 F.3d at 244. Aside
discussed

above,

VUU

argues

that

constitute

the

August

adverse

and

employment

September
action

reprimands

(Def.' s

Mem.

do

5-9;

not

Def.' s

Reply 4-9), and thus that Hinton has not adequately pled a Title
VII

claim

even

Accordingly,
facts

if

he

were

a

member

of

a

protected

class.

the Court next considers whether Hinton has stated

which

plausibly

support

the

existence

of

an

adverse

employment action.
(b)

"Adverse Employment Action"

To be cognizable under Title VII's prohibition on workplace
discrimination,

the

employer

employment

action."~'

September

2013

must

engage

in

an

"adverse

Goode, 807 F.3d at 625. The August and

reprimands,

absent

allegations

of

collateral

consequences,

do not rise to the level of "adverse employment

action,"

cannot

and

support

a

claim

for

discrimination

under

Title VII.
Title VII protects against adverse employment actions, not
all workplace injustices. "The italicized words in [42 U.S.C. §
2000e-2 (a) (1)]
conditions,

'hire,'
or

opportunities,'

'discharge,'

privileges
and

of

'compensation,

employment, '

'status as an employee'

-

terms,

'employment

explicitly limit

the scope of that provision to actions that affect employment or
alter the conditions of the workplace." Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 62, 126 S. Ct. 2405, 2411-12, 165

L. Ed. 2d 345 (2006); see also Jeffers v. Thompson, 264 F. Supp.
19

2d 314,
must

329

(D.

Md.

2003)

"materially alter

(noting that discriminatory conduct

the

terms,

conditions,

employment" resulting in "discharge,

or

demotion,

benefits

of

decrease in pay

or benefits, loss of job title or supervisory responsibility, or
reduced opportunities for promotion."). Thus, "[t)o prevail on a
Title

VII

action

claim,

is

'the

required.'"

existence
Holland

of

v.

some

adverse

Washington

employment

Homes,

Inc.,

487

F.3d 208, 219 (4th Cir. 2007)

(internal quotations omitted). "An

adverse

is

employment

'adversely affect(s]

action

a

the terms,

plaintiff's employment.'"

discriminatory

conditions,

act

that

or benefits of the

Id.

The United States Court of Appeals for the Fourth Circuit
and its district courts have hewed to the view that neither oral
nor written reprimands constitute the sort of adverse employment
action cognizable under Title VII unless plaintiff also alleges
that

the

reprimand

has

potential

collateral

consequences that

rise to the level of an adverse employment action.
Anne Arundel Cty.

Pub.

Sch.,

789 F. 3d 422,

429

In Adams v.

(4th Cir. 2015)

the Court of Appeals affirmed a grant of summary judgment for
the reason that ''neither the written nor the verbal reprimands
qualify as adverse employment actions, because they did not lead
to further discipline."

In Prince-Garrison v. Maryland Dep't of

Health & Mental Hygiene,

317 F. App'x 351,

the

Fourth

Circuit

affirmed

a
20

dismissal

353

(4th Cir. 2009),

pursuant

to

Rule

12 (b) ( 6)

because "reprimands for insubordination, meetings with

supervisors,

and

directions

to

attend

constitute adverse employment actions.

1110

counseling,

do

not

In Hopkins v. Baltimore

Gas & Elec. Co., 77 F.3d 745, 755 (4th Cir. 1996), the Court of
Appeals affirmed a grant of summary judgment for defendant where
the plaintiff "received a

formal disciplinary warning

but

the warning was subsequently removed from his personnel record."
In Jeffers, the district court granted summary judgment because:
[l]ike a
reprimand,
a
poor performance
rating does not in itself constitute an
adverse employment action ... Rather, it is
a mediate step, which, if relied upon for a
true
adverse
employment
action
(e.g.,
discharge, demotion, etc.) becomes relevant
evidence. . .
HHS never used Ms. Jeffers'
'unacceptable'
performance rating to her
detriment. Moreover, like the reprimand she
received, the negative evaluation remained
in her official personnel file only two
years; the file now contains no record of
it ... Accordingly, Ms. Jeffers' performance
rating does not rise to the level of an
adverse employment action.")
Jeffers,
this

264 F.

district,

Supp.
the

at 330
Court

(internal quotations omitted).

granted

summary

judgment

for

In
the

employer where the employee received a reprimand, but there was
10

Of the cases recited in this paragraph, only Prince-Garrison
involved a motion to dismiss; the other cases were presented on
summary judgment. Prince-Garrison is unreported, and is thus
persuasive rather than binding. However, as discussed below, the
general principles governing whether an employer's action
constitutes
is
an
"adverse
employment
action"
tend
to
independently support a finding that a reprimand, without
collateral consequences, does not rise to the level of an
adverse employment action.
21

no "evidence in the record that he suffered any adverse effect
on

the

terms,

conditions,

or

benefits

of

his

employment."

Jackson v. Winter, 497 F. Supp. 2d 759, 771 (E.D. Va. 2007)
As VUU correctly points out,

Hinton has not alleged that

Green's reprimands ever led to an adverse employment action that
affected
Hinton

the

does

terms
not

allegation.

or

conditions

contend

Instead,

he

that

the

argues

of

his

employment.

Complaint
that

the

contains

Complaint

Indeed,
such
need

an
not

specifically allege that the reprimand led to adverse employment
For that contention,

action.
Stores,

Inc.,

No.

Hinton relies on Law v. Autozone

CV 4:09CV17,

25, 2009) and Koenig v. McHugh,

2009 WL 4349165

(W.D.

Va.

Nov.

3:11cv60, 2012 WL 1021849 (W.D.

Va. Mar. 26, 2012). Hinton also argues that most of VUU's cases
involve summary judgment and thus are not controlling at this
stage

of

the

proceedings.

There are

Hinton's reliance on these cases:
Hinton's position;

( 1)

three

major

flaws

with

Koenig does not support

( 2) Law is inapplicable after Igbal; and ( 3)

Prince-Garrison indicates that the distinction between a motion
to dismiss and a motion for summary judgment should not alter
the analysis that was the basis for the decision in Adams and
similar cases.

22

(i) Koenig Requires
Consequences
In

Koenig,

plaintiff's

Allegations

employer

reprimand (a "warning letter"). Koenig,

issued

of

her

Collateral

a

written

2012 WL 1021849, at *3.

Koenig alleged that the letter "subjected [her]

to more serious

discipline than she would otherwise be subject to in the future
in the event there were future charges of misconduct." Id.
The defendant maintains that the letter of
counseling issued to Koenig does not rise to
the level of an adverse employment action
for purposes of Title VII ....
[C]ourts have held that a written warning or
letter of counseling may rise to the level
of an adverse employment action "if it
affects the likelihood that the plaintiff
will
be
terminated,
undermines
the
plaintiff's current position, or affects the
plaintiff's
future
employment
opportunities." ... Given Koenig's assertion
that the letter of counseling subjected her
to more serious discipline than she would
have otherwise faced if the letter had not
been
issued,
the
court
is
unable
to
conclude, at this stage of the litigation,
that Koenig did not suffer an adverse
employment action.
Koenig, 2012 WL 1021849, at *4-5 (denying motion to dismiss).
At most,
et al.:

Koenig states a refinement of the rule in Adams,

a reprimand is not an adverse employment action unless

plaintiff

also

pleads

that

such

a

reprimand

will

subject

plaintiff to bona fide adverse employment actions in the future.
However,
Hinton

this case is easily differentiated from Koenig because
did

not

plead

that

the
23

August

and

September

2013

reprimands would subject him to more serious adverse employment
actions in the future.
Hinton urges that it is permissible generally to infer that
any reprimand will result in a likelihood of more serious future
discipline.

That,

however,

is inconsistent with settled Title

VII jurisprudence that not every workplace wrong has a federal
remedy.

~,

White,

548 U.S. at 62; Holland,

In light of White and Holland,

487 F.3d at 219.

it is inappropriate to conclude

that every allegation of a reprimand permits an inference that
the reprimand is the type of wrong covered by Title VII, without
an accompanying specific allegation that,
disciplinary

scheme

or

for

some

other

under the employer's
plausible

reason,

the

reprimand will subject plaintiff to adverse employment action if
plaintiff

is

disciplined

in

the

future.

That

is

the

clear

teaching of Prince-Garrison, 317 F. App'x at 353, which upheld a
motion

to dismiss

because

plaintiff did

not

reprimand could serve as the basis for future,

allege

that

the

harsher adverse

employment actions. Although Prince-Garrison, as an unpublished
case,

is of persuasive rather than binding effect,

there is no

reason to deviate from Prince-Garrison when the thrust of White
and Holland clearly signals

that courts should not treat the

anti-discrimination provision of Title VII as giving a remedy
for actions that do not materially alter the plaintiff's terms
and conditions of plaintiff's employment.
24

Thus,
precedent

the
is

approach

that

is

to conclude that,

most

consistent

with

at the very least, a

circuit

reprimand

cannot satisfy the adverse employment action element of a Title
VII

discrimination

alleges

that:

employment

(1)

effect

claim
the
or

unless

the
has

reprimand

(2)

the

complaint
had

reprimand,

a

under

specifically

direct
the

adverse

employer's

disciplinary practices or for some other plausible reason, will
exacerbate

future

discipline

in

a

way

that

plausibly

can

be

expected to create a future adverse employment effect.
(ii) Law v. Autozone Refl.ects Outdated
Standards That Do Not Govern Here

Law

states

that

merely

alleging

alleging collateral consequences,

a

reprimand,

Pl.eading

without

is sufficient to establish an

adverse employment action at the motion to dismiss stage.
2009 WL 4349165, at *2.
Defendant AutoZone cites a string of cases
for the proposition that a written reprimand
is insufficient as a matter of law to
constitute an adverse employment action.
This interpretation of the relevant case law
is mistaken. The precedent clarifies that a
reprimand
is
neither
automatically
sufficient nor per se insufficient to meet
that element of the claim.
See PrinceGarrison v. Md. Dep' t of Heal th & Mental
Hygiene, 317 Fed. Appx. 351, 353 (4th Cir.
2009). Instead, each case cited by AutoZone
indicates
that
the
relevant
inquiry is
whether the reprimand had tangible, adverse
effects on the plaintiff's employment. See
id. (upholding the district court 1 s finding
that plaintiff did not show disciplinary
measures
had a
"tangible effect[
)
on
25

Law,

employment) ... Amirmokri v. Abraham, 437 F.
Supp. 2d 414, 423 (D. Md. 2006), aff 'd, 266
Fed. Appx. 274 (4th Cir. 2008) (inquiring
whether plaintiff 1 s reprimand "affected the
terms and conditions of his employment, his
opportunities for advancement, or any other
aspect of his career")
Jeffers v.
Thompson, 264 F.Supp.2d 314, 330 (D.Md.2003)
("[I) f evidence shows that a reprimand not
only
bruises
an
employee's
ego
or
reputation, but also works a real, rather
than speculative,
employment injury,
the
reprimand becomes
an adverse employment
action."
(citations omitted))
Thus,
AutoZone's argument that a reprimand is
automatically insufficient as a matter of
law is without merit.
Plaintiff's Complaint does not describe the
ef feet of a writ ten reprimand on employee
pay,
advancement
opportunities,
or
dismissal. Given the fact that a court
should construe the allegations of the
Complaint in a light most favorable to the
plaintiff, Matkari, 7 F.3d at 1134, Ms.
Law's complaint does not demonstrate the
sort
of
"insuperable
bar
to
relief"
necessary to require dismissal of this
claim,
Browning,
945
F.Supp.
at
931
(internal
quotation
omitted).
Should
additional evidence reveal that AutoZone' s
written reprimands lack the sort of effect
necessary to qualify as adverse employment
actions,
summary
judgment
in AutoZone' s
favor may be appropriate.
Law,

2009

WL

omitted)

4349165,

(emphasis

at

*2

added) .

(some

district

Hinton's

court

reliance

on

citations
Law

is

unpersuasive for two reasons.
First,
without

Law

does

allegations

sufficient

to

state

not
of
a

actually

state

accompanying
claim

for

26

that

a

material

Title

VII

reprimand,
change,

is

discrimination.

Rather,

Law requires "inquiry

tangible,
2009

WL

[into]

whether the reprimand had

adverse effects on the plaintiff's employment." Law,
4349165,

at

*2.

Like

Koenig,

Law

recognizes

that

an

adverse employment action must be associated with the reprimand
to obtain relief under Title VII. Rather than disagreeing on the
elements of a prima facie Title VII discrimination claim,

Law

denied the motion to dismiss on the grounds that plaintiff was
not

required

to

specifically

allege,

in

the

complaint,

the

collateral consequences thought to constitute adverse employment
action.
This leads into the second problem with reliance on Law:
Law's

position

consequences
complaint

that

the

constituting

has

been

plaintiff need
adverse

upended

by

not

allege

employment
the

thrust

collateral

action
of

in

the

post-Iqbal

jurisprudence, and also runs counter to Prince-Garrison.
Law was
cites

Iqbal;

decided

several

however,

months

the

after

decision

Iqbal

and actually

reflects

pre-Igbal

sensibilities that the Fourth Circuit has noted no longer govern
federal pleading standards. Specifically, Law takes its pleading
standards from Browning v. Vecellio & Grogan, Inc., 945 F. Supp.
930,

931

(W.D. Va. 1996), which noted that dismissal is limited

to "the extraordinary case where the pleader makes allegations
that show on the face of the complaint some insuperable bar to
relief." Law,

2009 WL 4349165,

at *l.
27

It appears that no court

has explicitly found that Iqbal abrogated the "insuperable bar"
formulation.
language
(Def.' s
Circuit.

11

runs

However,

as

VUU

notes,

the

contrary

to

the

thrust

of

Reply 8) ,
As

the

as

"insuperable
and

Iqbal,

recognized in broad terms by the

Fourth

Fourth

Circuit

Twombly

bar"

explained

in

Francis

v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009):
In
recent
years,
with
the
recognized
problems created by [suits making largely
groundless
claims
to
justify conducting
11

The "insuperable bar" standard for dismissal seems to make its
first appearance in a federal appeals court opinion in Corsican
Prods. v. Pitchess, 338 F.2d 441, 443 (9th Cir. 1964) (quoting
Wright, Federal Courts 2 50 ( 1963) ) , though the phrase became
considerably more popular in the 1970s after several federal
circuit courts plucked it from the second edition of Wright's
treatise. ~' Lewis v. Chrysler Motors Corp., 4 56 F. 2d 605,
607 (8th Cir. 1972).
The phrase has never been adopted in the Eastern District
of Virginia; the exception that proves the rule is Ciralsky v.
C.I.A., No. 1:10CV911 LMB/JFA, 2010 WL 4724279, at *6 (E.D. Va.
Nov. 15, 2010) aff'd sub nom. Ciralsky v. Tenet, 459 F. App'x
262 (4th Cir. 2011), which noted the Third Circuit's use of the
phrase. The Fourth Circuit used the phrase once: in the context
of an opinion about summary judgment that was later vacated (on
substantive grounds, rather than pleading standards) after a
rehearing en bane. Boring v. Buncombe Cty. Bd. of Educ., 98 F.3d
1474, 1479 (4th Cir. 1996}, reh'g en bane granted, opinion
vacated, on reh'g en bane, 136 F.3d 364 (4th Cir. 1998). The
phrase was common in Western District of Virginia opinions until
several months after Iqbal,
at which point it completely
disappeared from usage in the Western District of Virginia; Law
is actually the last Western District of Virginia case that used
the language. The single post-Law use of the phrase in this
circuit is Champion Pro Consulting Grp., Inc. v. Impact Sports
Football, LLC, 976 F. Supp. 2d 706, 713 (M.D.N.C. 2013).
Thus, although the "insuperable bar" language has not been
explicitly disavowed, the term's near-disappearance within the
Fourth Circuit several months after Iqbal tends to indicate that
the phrase was displaced by the Twombly-Igbal shift.
28

extensive and costly discovery with the hope
of forcing the defendant to settle at a
premium to avoid the costs of the discovery)
see 5A Wright & Miller, Federal Practice and
Procedure,§ 1296, at 46 & n. 9, and the
high costs of frivolous
litigation,
the
Supreme Court has brought to the forefront
the Federal Rules 1 requirements that permit
courts to evaluate complaints early in the
process. Thus, in Iqbal, the Court stated
that " [ t) o survive a motion to dismiss, a
complaint must contain sufficient factual
matter, accepted as true, to 'state a claim
to relief that is plausible on its face.' "
129 S.Ct. at 1949 (emphasis added) (quoting
Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
The
plausibility
standard
requires
a
plaintiff to demonstrate more than "a sheer
possibility that
a
defendant
has
acted
unlawful! y." Id. It requires the plaintiff
to articulate facts, when accepted as true,
that "show" that the plaintiff has stated a
claim entitling him to relief, i.e., the
"plausibility of 'entitlement to relief.' "
Id. (quoting Twombly, 550 U.S. at 557, 127
S.Ct. 1955).
Put another way,

the standard of Browning and Law required the

plaintiff to plead a

case for which

relief

is not

impossible.

The proper standard Twombly and Igbal requires the plaintiff to
plead facts which make relief plausible,
than

"not

impossible."

Law

Thus,

does

a tighter requirement
not

help

Hinton's

argument.
(iii)
Prince-Garrison Teaches That Failure to
Allege More Than a Reprimand-Without-CollateralConsequences Requires Dismissal
Finally, Hinton argues that:
as an overall fundamental flaw, VUU seeks
dismissal by improperly substituting summary
29

judgment
standards
for
basic
"notice
pleadingu standards. Relying, for example,
almost exclusively on "prima facie caseu
evidentiary standards and decisions from the
summary judgment context, VUU argues that
Hinton's allegations are insufficient to
state claims because . . . he has not suffered
an adverse employment action or a materially
adverse employment action for purposes of
his Title VII discrimination and retaliation
claims.
(Pl.'s Opp. 2).

It is true that most of the decisions on which

VUU relies arose in the context of summary judgment.
Hinton's
which
types

position

granted a
of

is

untenable

motion

material

in

to dismiss

harms

light
for

required

of

Prince-Garrison,

failure

to

However,

satisfy

to allege
the

the

adverse

employment action element of a Title VII discrimination claim.
(F]ailure to provide [plaintiff] with office
supplies,
reprimands for insubordination,
meetings with supervisors, and directions to
attend counseling, do not constitute adverse
employment actions. See Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 651-52 (4th
Cir.
2002)
(finding
that
neither
'disciplinary
discussion'
prompted
by
employee's insubordination nor performance
evaluation unaccompanied by tangible effects
on
employment
were
adverse
employment
actions for purposes of a retaliation claim
under Title VII)u).
Prince-Garrison,

317

Prince-Garrison

is

F.

App' x at 351.

persuasive

holding is consistent with
of

a

Title

VII

(1)

rather

As an unpublished case,
than

binding,

but

its

Adams's holding on the elements

discrimination

claim

and

(2)

Francis's

recognition of Iqbal's impact on pleading standards. Thus, it is
30

irrelevant that the issue arises on a motion to dismiss rather
than on a

motion

allegations

in

for

the

summary

Complaint

judgment.

Absence

of sufficient

is

at

Rule

fatal

the

12(b) (6)

stage, just as absence of proof supporting such an allegation is
fat al

at

the

allege facts

Rule

56

stage.

In

this

case,

Hinton

failed

to

upon which the Court can plausibly infer that an

adverse employment action occurred,

and has accordingly failed

to state a claim for relief.
(c)

Application

Applying the distinction between Browning/Law and Francis
to this case, it is clear that, in a post-Iqbal world, it is not
enough for Hinton to plead that he received a reprimand, leaving
it

"not

"tangible,
such

impossible"

in

conjunction

reprimand

carried

with

it

with

a

subsequent

disciplinary

Instead, his Complaint must ''articulate facts, when

accepted as true,
claim

the

adverse effect on employment" or the potential for

effects

proceeding.

that

entitling

that
him

to

'show'

that the plaintiff has stated a

relief."

Francis,

588

F.3d

at

193.

Because Hinton did not plead that the August and September 2013
reprimands subjected him to present or potential future adverse
employment actions,

12

he has failed to plead an injury cognizable

12

Hinton's statement that "Hinton has been caused to suffer the
loss of potential occupational opportunities" (Compl. ~ 2 9) {1)
is not an allegation that the terms of his employment were
altered, as required by the adverse employment action element,

31

under Title VII. 13

Therefore, for that alternative reason, VUU's

motion to dismiss will be granted as it pertains to Count I.

B. Count II: Title VII Retaliation

For the reasons stated below,
II

will

be

granted

as

it

September 2013 reprimands;
taking
However,

as

retaliation

for

the motion to dismiss Count

pertains
and
the

(2)

to:

(1)

the

August

and

the refusal to allow class-

September

the motion to dismiss Count

2013

EEOC

complaint.

II will be denied as

it

pertains to the refusal to allow class-taking as retaliation for
the 2008 EEOC activity and the May 2013 internal complaint.
As

with

discrimination

claims,

retaliation

claims

may

proceed under the direct method or under the prima facie method.
Foster,

787

F. 3d at

250;

Lee,

2015 WL 5147067,

at

*4.

Unlike

Count I, where Hinton presented a direct statement by Green that
he

received

a

reprimand

because

of

his

sexual

orientation,

Hinton has offered none of the direct evidence that would allow
him

to

proceed

under

the

direct

method.

~'

Lee,

2015

WL

and (2) is, in the absence of even general facts about the type
of
opportunities
Hinton
might
have
allegedly
lost,
a
quintessential conclusory allegation.
13

Most often a potential future adverse employment action will
be one that is provided for in the employer's disciplinary
scheme or practices or that is foreshadowed by specific
statements or conduct accompanying the reprimand.
That is
because, without an allegation of that sort, an allegation of
potential future action would be speculation or conjectural and
thus would run afoul of the Twombly-Igbal requirements.
32

5147067, at *3 (noting that direct evidence includes "statements
by an employee 1 s

supervisors that are generally discriminatory

or statements by supervisors that indicate that

their actions

were motivated by the employee's race or sex, or in retaliation
against filed EEOC claims") . 14
In

the

absence

of

direct

under the prima f acie method.

evidence,

Hinton

must

As to the first element,

proceed
Hinton

pled that he engaged in protected activity twice in 2008 (Compl.
'!I'll 7-9)

and twice in 2013.

dispute

the

second

and

(Compl.

third

'll'll 20-22,

elements:

subjected to adverse employment action

33).

whether

when Green

The parties
Hinton

was

reprimanded

Hinton and refused to allow Hinton to take VCU classes (Compl. 'II

14

In Lee, the magistrate judge's report noted that:
Proceeding via allegations of direct or
indirect evidence, a plaintiff must allege
facts showing that unlawful retaliation was
the
"but-for"
cause
of
the
adverse
employment action. ... In the instant case,
[plaintiff] has not alleged any direct or
indirect facts in support of his retaliation
claim, let alone any facts supporting a
reasonable
inference
that
unlawful
retaliation was the "but-for" cause for
[defendant] denying [plaintiff] promotions
in 2013. Therefore, Lee's retaliation claim
fails under this method of analysis.
Lee, 2015 WL 5147067, at *5. As in Lee, Hinton is unable to
proceed under the direct route.
33

34),

and whether Hinton has pled facts that make a causal link

plausible. 15
At the outset,

it is important to note that the adversity

element for a Title VII retaliation claim is somewhat different
That difference is

than for a Title VII discrimination claim.
important

here,

but

neither party has

analyzed

the

requested

dismissal of Count II in perspective of the difference. Thus, it
is necessary to sort out the decisional law that controls the
analysis of the adversity element in a retaliation claim from
the

decisional

law

that

controls

the

adversity

element

in

a

retaliation claim.

1.

Title

The Controlling Standard For Retaliation Claims
:rs "Materially Adverse Action," Not "Adverse
Employment Action

VII

against any of
made

a

charge,

prohibits
[its]

an

employer

employees

testified,

from

... because

assisted,

or

"discriminat[ing]
[the employee]

participated

in

has
any

manner in an investigation, proceeding, or hearing under [Title

15

The Court notes briefly that the nature of the discrimination
that led to an employee's protected action is irrelevant to the
employee's statement of a claim for retaliation. Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 69, 126 S. Ct. 2405,
2416, 165 L. Ed. 2d 345 (2006) ("this standard does not require
a reviewing court or jury to consider 'the nature of the
discrimination that led to the filing of the charge'
Rather, the standard is tied to the challenged retaliatory act,
not the underlying conduct that forms the basis of the Title VII
complaint.") (internal citations omitted).
34

42 U. s. C.

VI I) . "

Coleman v.
Cir.

VUU

relies on the decision in

Maryland Court of Appeals,

2010),

Maryland,

aff'd

the

Mem.

sub

nom.

Ct.

s.

132

articulate
(Def.' s

2000e-3 (a) .

§

1327,

elements

12-13;

of

Def.' s

626

Coleman
182
a

v.

L.

prima

Reply

F.3d 187,

Court

Ed.

13).

of

Appeals

of

(2012}

to

retaliation

As

(4th

296

2d

f acie

190

stated

in

claim.

Coleman,

"[t]he elements of a prima facie retaliation claim under Title
VI I

are:

( 1)

engagement

employment action;

and

in a

(3)

protected activity;

( 2)

adverse

a causal link between the protected

activity and the employment action." However, Coleman misstates
the

second

element

Supreme Court,
of

other

of

a

prima

facie

retaliation

other Fourth Circuit opinions,

circuit

courts

clearly

indicate

claim.

The

and the opinions

that

a

"materially

adverse action," not "adverse employment action," is the proper
articulation of the adversity element in retaliation claims.
In 2006, the Supreme Court issued White, an opinion focused
on

distinguishing

the

standards

for

Title

claims and Title VII retaliation claims.

VII

discrimination

Burlington N.

& Santa

Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d
345

(2006} . The Court began by discussing the intent and scope

of the discrimination and retaliation provisions of Title VII.
In

so

doing,

encourage
based on

the

reporting,
a

Court

explained

that

and

therefore

permits

broader class

of employer
35

Title

VII

seeks

retaliation

actions

to

suits

than Title VII

permits in discrimination suits. As the Court held, "Title VII's
substantive provision and its antiretaliation provision are not

Courts

of

provision

reject

We

coterminous

Appeals
as

that

forbidding

antidiscrimination
retaliation

to

have
the

provision

the

treated

same
and

standards

conduct

that

'ultimate

so-called

the

have

applied

in

the

antiretaliation

prohibited
limited

employment

by

the

actionable

decisions.'"

White, 548 U.S. at 67.
Having
standard

concluded

for

discrimination

retaliation suits,
appropriate

that

the

"adverse

suits

should

employment
not

be

action"
used

in

the Supreme Court proceeded to articulate an

standard

for

actionable

misconduct

in

retaliation cases.
[A] plaintiff must show that a reasonable
employee would have found the challenged
action materially adverse, "which in this
context means it well might have 'dissuaded
a
reasonable
worker
from
making
or
supporting a charge of discrimination.'" ...
We speak of material adversity because we
believe
it
is
important
to
separate
significant from trivial harms
The
antiretaliation provision seeks to prevent
employer
interference
with
"unfettered
access" to Title VII' s remedial mechanisms
It does so by prohibiting employer
actions that are likely "to deter victims of
discrimination
from
complaining
to
the
EEOC," the courts, and their employers ....
And
normally
petty
slights,
minor
annoyances, and simple lack of good manners
will not create such deterrence
We
ref er to reactions of a reasonable employee
36

Title

VII

because we believe that the provision's
standard for judging harm must be objective.
Id. at 68-69 (internal citations omitted)
"materially
restrictive

than

standard

action"

adverse
the

\\adverse

(emphasis added). This
explicitly

is

employment action"

standard

less
for

discrimination claims. Id. at 62. 16
Additionally,
discrimination

although \\adverse employment actions" in the

context

must

\\affect

employment

or

alter

the

conditions of the workplace," a "materially adverse action" in
the

retaliation

workplace

to be

context

need

actionable.

not

Indeed,

impact

conditions

in

the

White explicitly rejected

the EEOC's understanding that the retaliation provision of Title
VII

required employment-related action.

Id.

at

the

Court

of

the

announced

that

"(t] he

scope

64-67.

Instead,

antiretaliation

provision extends beyond workplace-related or employment-related
retaliatory

acts

and

harm."

Id.

at

67.

"An

employer

can

effectively retaliate against an employee by taking actions not
directly

related

to

his

employment

or

by

causing

him

harm

outside the workplace." Id. at 63. 17 Under White, effect on terms

16

"The italicized words in [42 U.S.C. § 2000e-2 (a) (1)] - 'hire,'
'discharge,' 'compensation, terms, conditions, or privileges of
employment,'
'employment opportunities," and
'status as an
employee'
explicitly
limit
the
scope
of
[the
antidiscrimination provision] to actions that affect employment or
alter the conditions of the workplace." Id.

h.
In W ite,
the Court noted two potential examples of
retaliation that did not affect the terms of employment. First,

17

37

or conditions of

employment

can certainly be

a

fact-based determination of material adversity,
(discussing
terms

or

denial

conditions

of
of

training

lunches);

employment

is

no

factor

~,

however,
longer

in the

id.

at 69

effect

on

necessary

to

state actionable misconduct in a retaliation claim.

Id.

at 63-

several

Fourth

67.

Shortly after the 2006 decision
Circuit
standard,

cases

applied

noting that,

the

new

in White,

"materially

after White,

adverse

action"

retaliation claims did not

require an adverse effect on terms of employment.
[T] he district court held, relying on older
Title VII
cases
that
in
order to
establish an FLSA retaliation claim, Darveau
had
to demonstrate
that
he
suffered a
materially
adverse
employment
action
involving an ultimate employment decision
related
to
hiring,
leave,
discharge,
promotion, or compensation ....
This rationale rests on outdated Title VII
precedent
(I] n
Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct.
2405,
2414,
165 L.Ed.2d 345
(2006),
the
Court held that a Title VII retaliation
plaintiff
need
not
allege
or
prove
an
ultimate adverse employment action, because
"[t]he
scope
of
the
anti-retaliation
provision extends beyond workplace-related
the Federal Bureau of Investigation took a "materially adverse
action" when it refused "contrary to policy [ l to investigate
death threats against a federal prisoner made against [the
agent] and his wife." Id. at 63-64. Second, the Court, while
noting that "material adversity" was context-dependent, noted
that "A schedule change in an employee's work schedule may make
little difference to many workers, but may matter enormously to
a young mother with school-age children." Id. at 69.
38

or employment-related retaliatory acts and
harm." The Court ruled that Title VII's
retaliation provision requires a plaintiff
simply
to
allege
and
prove
"that
a
reasonable employee would have found the
challenged action materially adverse, which
in this context means it well might have
dissuaded a reasonable worker from making or
supporting a charge of discrimination." Id.
at 2415 (citations and internal quotation
marks omitted) .
Darveau v. Detecon, Inc., 515 F.3d 334, 341-42 (4th Cir. 2008); 18
see also Caldwell v.
2008);

Johnson,

Scurlock-Ferguson v.

289 F.

App'x 579,

City of Durham,

588

221

F.

(4th Cir.
App'x 292,

293 (4th Cir. 2007).
In

the

years

since

Darveau,

and

Caldwell,

Scurlock-

Ferguson, several Fourth Circuit opinions have followed suit and
held that "material adverse action" is the required articulation
of the adversity element in a retaliation claim.
v.

Am.

2010)
a

Physical Sec'y,

Inc.,

404

F.

App 1 x

762,

~

765

Mascone

(4th Cir.

{"In order to establish a prima facie case of retaliation,

plaintiff

activity;

(2)

against her;

must
the
and

show

that:

employer
(3)

( 1)
took

she
a

engaged

materially

in

a

protected

adverse

action

there is a causal connection between the

18

Although Darveau was an FLSA retaliation case, the Fourth
Circuit
looked
to
the
law
of
Title
VII
retaliation
particularly the new Title VII retaliation developments in White
- to resolve the FLSA retaliation claim. Darveau, 515 F.3d at
342
(noting
the
"almost
uniform
practice
of
courts
in
considering the authoritative body of Title VI I case law when
interpreting
the
comparable
provisions
of
other
federal
statutes.")
39

protected activity and the adverse action")
elements of King v. Rumsfeld,
with

the

Peters,

"materially

Harrison v.

S.

Carolina

2015 WL 4081226,
(noting

that

at

2015)

(same);

*4

"material

Chesapeake Employers'

328 F.3d 145, 149 (4th Cir. 2003)

adverse"

340 F. App'x 858,

861

rule

of

White};

(4th Cir. 2009)

Pueschel

v.

(same); see also

Dep't of Mental Health,

No.

(4th Cir.

(unpublished}

July 7,

adversity"

Ins. Co.,

Buckley v.

(combining the old

2015)

governs);

Jensen-Graf

616 F. App'x 596, 598

Mukasey,

14-2096,

538 F. 3d 306,

315

v.

(4th Cir.
(4th Cir.

2 OO8 ) ( same ) .
Other Courts of Appeals have likewise recognized the White
shift.

As

a

representative

example,

the

Eleventh

observed that:
the

Supreme Court 1 s decision in Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)
announced a new rule which redefines the
standard for retaliation claims under Title
VII.

Under the holding of Burlington, the type of
employer conduct considered actionable has
been broadened from that which adversely
affects
the
plaintiff's
conditions
of
employment or employment status to that
which has a materially adverse effect on the
plaintiff,
irrespective of whether it is
employment
or
workplace-related.
See
Burlington, 126 S.Ct. at 2415. Thus, the
Burlington Court effectively rejected the
standards applied by this court
that
required an employee to show either an
ultimate employment decision or substantial
employment action to establish an adverse
40

Circuit

employment action for the purpose of a Title
VII retaliation claim
This more liberal view of what constitutes
an adverse employment action accords an
employee protection from a wider range of
retaliatory conduct than would be available
under (previous standards].
Crawford

v.

Carroll,

(noting

that

the

new

(emphasis added) .
F.3d 14,

20

529

F.3d

961,

standard

is

2006);

13,

"decidedly

Kessler v.

of Soc. Servs., 461 F.3d 199, 207

(Sept.

(11th

See also Carmona-Rivera v.

(1st Cir.

of Philadelphia,

973-74

461 F. 3d 331,

2006);

Cir.

more

2008)

relaxed")

Puerto Rico,

Westchester Cty.

4 64

Dep 1 t

(2d Cir. 2006); Moore v. City

341

{3d Cir.

Kebiro v. Walmart,

2006),

as amended

193 F. App 1 x 365,

369 n.2

(5th Cir. 2006); Laster v. City of Kalamazoo, 746 F.3d 714, 730
(6th Cir.
Cir.

2014);

2006);

2007)

243

Higgins v.

abrogated

Rochester,
F.

Denver,

Thomas v.

on

Gonzales,

other

64 3 F. 3d 1031

App'x
513

269,
F.3d

Potter,

202 F.
481

grounds

(8th Cir.

273

(9th

1206,

1212

App'x 118,

F.3d 578,

by

589

Torgerson

119

(7th

(8th Cir.

v.

City

of

Di let to so v.

2007);

Cir.

2011) ;

Somoza

v.

Univ.

of

2008);

Velikonja

v.

(10th

Cir.

Potter,

Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006).
In

sum,

jurisprudence

Circuit's
adverse

(1)

the

of

other

own

opinions

action"

when

text

of

circuit

all

White,
courts,

require

defining

41

the

the

(2)

the

and

use

adversity

overwhelming

(3)

of

the

Fourth

"materially

element

of

a

retaliation claim,

rather than the "adverse employment action"

element of discrimination claims.
However,
significant
"adverse

even
subset

in
of

employment

retaliation claims.

the

wake

of

Fourth Circuit
action"

as

an

White
cases

and

Davreau,

continued

element

of

a

reciting

Title

VIII

This misstatement of law tends to occur in

one of two ways. In the first set, the decision recites "adverse
employment action" as the second element of a retaliation claim,
without

qualif ica ti on.

~'

Adams

v.

Anne

Arundel

Cty.

Pub.

Sch., 789 F.3d 422, 429 (4th Cir. 2015) . 19 In the second set, the
decision

recites

"adverse

employment

element of a retaliation claim,

action"

as

the

second

but then introduces "materially

adverse action" language as a modifier for "adverse employment

19

See also Boyer-Liberto v. Fontainebleau Corp., 786 F. 3d 264,
281 (4th Cir. 2015); Engler v. Harris Corp., 628 F. App'x 165,
167 (4th Cir. 2015); Stewart v. Morgan State Univ., 606 F. App'x
48, 50 (4th Cir.), cert. denied, 136 S. Ct. 109, 193 L. Ed. 2d
88 (2015); Watt v. Mabus, 600 F. App'x 902 (4th Cir. 2015);
Pettis v. Nottoway Cty. Sch. Bd., 592 F. App 1 x 158, 160 (4th
Cir. 2014789 F.3d 422); Stokes v. Virginia Dep't of Corr., 512
F. App'x 281, 282 (4th Cir. 2013); Bryan v. Prince George's
Cty., Md., 484 F. App'x 775, 776 (4th Cir. 2012); Francisco v.
Verizon S., Inc., 442 F. App'x 752, 754 (4th Cir. 2011); Coleman
v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
aff'd sub nom. Coleman v. Court of Appeals of Maryland, 132 S.
Ct. 1327, 182 L. Ed. 2d 296 ( 2012) ; Reed v. Airtran Airways,
Inc., 351 F. App'x 809, 810 (4th Cir. 2009); Wright v. Sw.
Airlines, 319 F. App'x 232, 233 (4th Cir. 2009); Johnson v.
Mechanics & Farmers Bank, 309 F. App'x 675, 684 (4th Cir. 2009);
Freeman v. N. State Bank, 282 F. App'x 211, 218 (4th Cir. 2008);
Johnson v. Wheeling-Pittsburgh Steel Corp., 279 F. App'x 200,
204 (4th Cir. 2008).
42

action.

For example,

one opinion in

the

second group

recites

that:
[ t] o
establish
a
prima
f acie
case
of
retaliation,
a plaintiff must demonstrate
that (1) he engaged in protected conduct;
( 2) his employer took an adverse employment
action against him; and (3) the protected
conduct
was
causally
connected
to
the
adverse action. Ziskie v. Mineta, 547 F.3d
220, 229 (4th Cir. 2008). To satisfy the
second element, "a plaintiff must show that
a reasonable employee would have found the
challenged action materially adverse, which
in this context means it well might have
dissuaded a reasonable worker from making or
supporting
a
charge
of
discrimination."
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d
34 5 ( 200 6)
(internal quotation marks and
citation omitted)
Wells v. Gates, 336 F. App'x 378, 382-83 (4th Cir. 2009) . 20

20

See also A Soc'y Without A Name v. Virginia, 655 F.3d 342, 352
(4th Cir. 2011); Harden v. Wicomico Cty., Md., 436 F. App'x 143,
145 (4th Cir. 2011); Gage v. Cort Bus. Servs., 410 F. App 1 x 725,
726 (4th Cir. 2011).
These decisions are at odds with White, Darveau, Caldwell,
and Scurlock-Ferguson because they retain an employment action
as a component of the second element of a Title VII retaliation
claim. The distinction is not merely semantic. By reciting
"adverse employment action" as an element of a retaliation claim
without simultaneously reciting White's statement that such
action need not affect the terms and conditions of employment,
White, 548 U.S. at 63, these types of decisions perpetuate the
misconception that an adverse action must be an employment
action to state a retaliation claim. ~, Morales v. Gotbaum,
42 F. Supp. 3d 175, 202 {D.D.C. 2014)
(properly reciting
material adversity as an element of prima facie claim for
discrimination, but requiring change in the terms or conditions
of employment to state a claim for retaliation based on denial
of training) .
43

Coleman
decisions.

(on which VUU relies)

See infra note 19.

case of Mackey v.

Shalala,

is among the first group of

There,

relying on the pre-White

360 F.3d 463,

469

(4th Cir.

2004),

the Fourth Circuit stated that "the elements of a prima facie
retaliation

claim

under

protected activity;
causal

(2)

Title

VII

adverse

are:

(1)

employment

engagement
action;

link between the protected activity and

action." Coleman,
Coleman

on

immunity;

626 F. 3d at 190.

appeal,
the

but

Supreme

only

a

(3)

a

the employment

The Supreme Court affirmed

on

Court

and

in

the

did

not

question
consider

of

sovereign

the

Fourth

Circuit's recitation of the elements of a Title VII retaliation
claim. Coleman, 132 S. Ct. at 1327. The Fourth Circuit's opinion
in

Coleman

subsequently

elements of a

became

retaliation claim.

a

popular
See,

citation

e.g.,

for

Engler v.

the

Harris

Corp., 628 F. App 1 x 165, 167 (4th Cir. 2015); Clarke v. Virginia
State Univ.,
Feb.

5,

No.

3:15-CV-374,

(E.D.

Va.

2016). 21 According to WestLaw' s Keycite statistics,

200

cases cite Coleman

for

2016 WL 521528,

the elements of

at *4

retaliation,

including

ten Fourth Circuit opinions and 190 opinions by district courts
within the Fourth Circuit; none of the citations are flagged as

21

This Court is among those courts that have cited Coleman for
the
"adverse
employment
action"
standard
repeatedly
in
retaliation cases.
44

negative. 22

By

Darveau's

contrast,

recitation

of

the

new

"materially adverse action" standard has been cited only cited
51 times,
the

and only 34 of those citations are by courts within
Circuit. 23

Fourth

contradicts the Supreme Court,
Fourth
Coleman

Circuit,
has

retaliation

and

jurisprudence

Fourth Circuit

and

Supreme

in

Court

its
White

opinions

outsized

an
in

that

it

other published decisions of the

published

exerted

fact

the

Notwithstanding

the

district

sister

courts

on

pulling

in

Circuit,
off

course

Darveau,

circuits,
pull

the

gravitational

Fourth

andapplied

of

set by the

Caldwell,

and

Scurlock-Ferguson. 24

2

~

This statistic was generated by retrieving Coleman, scrolling
to Headnote 3,
and selecting "200 Cases
that cite this
headnote."
Ci ting
References,
WestLaw,
https://1.next.westlaw.com/Link/Relatedinformation/DocHeadnoteLi
nk?docGuid=I44842868ece21ldf852cd4369a8093fl&headnoteid=20236486
3800320140205014441 (accessed Apr. 27, 2016).

23

This statistic was generated by retrieving Darveau, scrolling
to Headnote 7, and selection "51 Cases that cite this headnote."
Citing
References,
WestLaw,
https://l.next.westlaw.com/Link/Relatedinformation/DocHeadnoteLi
nk?docGuid=Id2abd68fd0451ldcb6a3a099756c05b7&headnoteid=20149629
0400720080507223305 (accessed Apr. 27, 2016).
24

For whatever reason, other Courts of Appeals also occasionally
use "adverse employment action" in retaliation claims with
varying
levels
of
frequency.
~,
Garayalde-Rijos
v.
Municipality of Carolina, 7 4 7 F. 3d 15, 24 (1st Cir. 2014) ; YaChen Chen v. City Univ. of New York, 805 F. 3d 59, 70 {2d Cir.
2015); Barnett v. New Jersey Transit Corp., 573 F. App'x 239,
244 (3d Cir. 2014), cert. denied, 135 S. Ct. 1493 (2015); Dailey
v. Shintech, Inc., 629 F. App'x 638, 642 (5th Cir. 2015); Crane
v. Mary Free Bed Rehab. Hosp., No. 15-1358, 2015 WL 8593471, at
*7 (6th Cir. Dec. 11, 2015); Jaburek v. Foxx, 813 F.3d 626, 633
45

In many cases - perhaps the overwhelming majority of cases
the

distinction

between

"adverse

employment

action"

and

"materially adverse action" is unlikely to change the outcome of
a case.
is

so

For example,
adverse

terminating the employment of an employee

that

it

is

difficult

to

imagine

a

case

where

firing an employee would not be both "materially adverse action"
and also an "adverse employment action." On the other side of
the adversity spectrum,

as discussed below, a reprimand without

collateral

consequences

is

qualifies

as

"materially

neither

employment action." There is,
of

cases

actions

on
but

which
not

the

others,

so

marginally

however,

broader

adverse

adverse"

nor

that

it

"adverse

a non-negligible subset

standard of

particularly where

White
the

covers

some

impact of

the

adverse action is not felt in the employment setting or does not
affect the conditions of employment. See, e.g.,
This

is

particularly

significant

in

this

White at 64-65.

case,

because

VUU' s

refusal to allow Hinton to take classes, depending on the facts,
could be so materially adverse that it would deter a reasonable
employee from engaging in protected activity,

even though the

(7th Cir. 2016}; Rebouche v. Deere & Co., 786 F.3d 1083, 1088
(8th Cir. 2015)
(using hybrid "materially adverse employment
action"); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1034-35 (9th Cir. 2006); Unal v. Los Alamos Pub. Sch., No. 152055, 2016 WL 360758, at *10 (10th Cir. Jan. 29, 2016); Jackson
v. Alabama Dep 1 t of Corr., No. 15-12441, 2016 WL 696998, at *4
(11th Cir. Feb. 22, 2016).
46

lack of impact on the terms of Hinton's employment means that
such action is not an adverse employment action.
Thus,

it is necessary,

in this case,

to come to terms with

the effect of conflicting circuit precedent.

Ordinarily,

the

only way to resolve such conflict is an en bane decision by the
Fourth Circuit.

However, considering that the Supreme Court has

already decided the issue in White and that the Fourth Circuit
has

followed

course

White

in

a

sizeable

set

of

cases,

the

correct

in this case is to follow the explicit holding of

Supreme Court in White,

the

along with the decisions of the Fourth

Circuit that note and apply the White decision as the law of the
circuit.
In sum,
White,

a

plaintiff

activity,
well

to state a prima facie case for retaliation under

(2)

have

supporting

must

"materially adverse

dissuaded
a

allege:

charge

a
of

(1)

engagement

reasonable

worker

discrimination,"

protected

which

action

in

might

form

and

(3)

making

or

causality.

White, 548 U.S. at 68; Mascone, 404 F. App'x at 765.

2.

Refusal to Allow Class-Taking At VCU Could
Constitute Material Adversity; Green's Reprimands
Did Not Constitute Material Adversity

Under the material adversity standard, reprimands, standing
alone

and without

collateral

consequences,

47

are

not

materially

adverse. However, denial of class-taking privileges is plausibly
materially adverse so as to preclude dismissal.

(a)
Even
standard,
pleaded,
that

under
the

the

comparatively

reprimands

do not

would

Reprimands Are Not Materially Adverse

in August

lax
and

"materially
September of

adverse"
2013,

as

state a materially adverse action of the sort

dissuade

a

reasonable

employee

from

engaging

in

protected activity. 25
First,
reprimand

this
without

Court's

independent

attached

collateral

analysis

shows

consequences

that
is

"materially adverse" under the guiding principles of White.
the

Supreme

Court

noted,

even

the

comparatively

lax

a
not
As

standard

"materially adverse" has its limits.
[I]t is important to separate significant
from trivial harms. Title VII, we have said,
does not set forth "a general civility code
for
the
American
workplace."
An
employee's decision to report discriminatory
behavior cannot immunize that employee from
those petty slights or minor annoyances that
often take place at work and that all
employees experience. See 1 B. Lindemann &
P. Grossman, Employment Discrimination Law
669 (3d ed. 1996) (noting that "courts have
held that personality conflicts at work that
generate antipathy" and "
'snubbing'
by
supervisors
and
co-workers"
are
not
actionable
under
§
704(a)).
The
antiretaliation provision seeks to prevent
25

The parties did not actually brief whether the reprimand was
"materially adverse," presumably because they, like many others,
believed that discrimination and retaliation followed the same
"adverse employment action" standard.
48

employer
interference
with
"unfettered
access" to Title VII' s remedial mechanisms
It does so by prohibiting employer
actions that are likely "to deter victims of
discrimination
from
complaining
to
the
EEOC,'' the courts, and their employers
And
normally
petty
slights,
minor
annoyances, and simple lack of good manners
will not create such deterrence.
White,

548 U.S. at 68. This Court finds that reprimands without

collateral

consequences

antipathy,

and

petty

are

akin

slights.

employment-related or otherwise -

to

non-actionable

They

cause

no

collateral

"adverse."

Because

are not adverse,
from

consequences

engaging

reprimands

detriment

besides the bruised feelings

which "all employees experience" on occasion.
without

snubbing,

cannot

without

be

Thus,

reprimands

characterized

collateral

as

consequences

they would not dissuade a reasonable employee

in

protected

activity,

and

cannot

supply

the

adversity element of a Title VII claim for retaliation.
Second,
same

courts within the Fourth Circuit have reached the

conclusion

consequences,
Cty.

Dep't

of

that

are not
Soc.

reprimands,

without

"materially adverse."
Servs.,

No.

CIV.A.

collateral

In Wright v.

ELH-12-3593,

2014

301026, at *14 (D. Md. Jan. 24, 2014), the court held that
"[t]he anti-retaliation provision of Title
VII does not protect against 'petty slights,
minor annoyances, and simple lack of good
manners.'"
Geist
v.
Gill/Kardash
Partnership,
671
F.
Supp.
2d 729,
738
(D.Md.2009)
(quoting [White,
548 U.S. at
64]). Moreover, Title VII's "antiretaliation
49

Kent

WL

provision protects an individual not from
all retaliation, but from retaliation that
produces an injury or harm." [White, 548
U.S. at 67.] As Judge Paul Grimm of this
Court recently noted, even under the "lower
bar" applicable to Title VII retaliation
claims, "none of the following constitutes
an
adverse
employment
action
in
a
retaliation
claim:
failing
to
issue
a
performance appraisal; moving an employee to
an
inferior
off ice
or
eliminating
the
employee 1 s
work station;
considering the
employee
'AWOL';
or
issuing
a
personal
improvement plan, 'an "Attendance Warning,"
' a verbal reprimand, 'a formal letter of
reprimand,' or 'a proposed termination.' "
Wonasue v.
University of Maryland Alumni
Ass'n, ---F.Supp.2d ----, 2013 WL 6158375,
at *10 (D.Md. Nov. 22, 2013) (quoting Rock
v. McHugh, 819 F.Supp.2d 456, 470-71 (D. Md.
2011}).
Wright
3593,

v.

Kent Cty.

Dep 1 t

2014 WL 301026,

of Soc.

at *19

(D.

Servs.,

Md.

Jan.

No.
24,

added); accord Thorn, 766 F. Supp. 2d at 603
that

"unwarranted

counseling" was
dissuade

a

reprimands"

in

the

form

CIV .A.
2014)

ELH-12(emphasis

(observing briefly
of

"letters

of

not materially adverse because they would not

reasonable

employee

from

engaging

in

protected

activities) . 26 Additionally, an unpublished opinion of the Fourth
Circuit

found

that

"poor

performance

26

reviews"

were

not

Wright and Thorn fall in the set of decisions - in the vein of
Wells, 336 F. App' x at 382-3, discussed above - which cite
"adverse employment action" as an element of a retaliation
claim, but which then analyze the allegedly adverse action under
the proper "materially adverse" standard. However, even though
Wright and Thorn recite the wrong element, the cases tend to
support this Court's independent conclusion that reprimands are
not materially adverse.
50

materially adverse, Parsons v. Wynne, 221 F. App 1 x 197, 198 (4th
Cir.

2007),

and one

district

court

performance reviews and reprimands.
*14. 27 Indeed,
disposed
tends

of

to

subsequently equated poor
Wright,

2014 WL 301026,

at

the terseness and brevity with which these courts
reprimands

indicate

non-actionable

under

that

that

courts

the

a

materially
consider

subject

does

adversity

reprimands
not

analysis

so

merit

clearly

extensive

analysis.
Third,
found

appellate

courts

that

reprimands

without

materially

adverse

actions. 28

outside

this

collateral
For

circuit

have

also

consequences are not

example,

the

First

Circuit

explained that:
[w] e have found before that a reprimand may
constitute an adverse action, Billings v.
Town of Grafton, 515 F.3d 39, 54-55 (1st
Cir. 2008), but the reprimands at issue here
are tamer beasts than the one in Billings.
Specifically, none of the reprimands here
can be said to be material because none
carried with it any tangible consequences.
Rather,
each
was
merely
directed
at
correcting
some
workplace
behavior
that
21

But cf. Belyakov v. Leavitt, 308 F. App'x 720, 729 (4th Cir.
2009) (holding that reprimand when combined with termination
materially adverse enough as to dissuade a reasonable person
from engaging in protected activity). Belyakov does not govern
here because, as discussed above, Hinton has not pled any
consequences related to or potentially stemming from his
reprimands.
28

Unlike Wright and Thorn, this set of cases use the correct
"materially adverse" element and, even employing this lower bar,
all of these cases conclude that reprimands without collateral
consequences do not establish material adversity.
51

management perceived as needing correction;
her working conditions were never altered
except in the positive direction. Bhatti may
well be right that these reprimands were
undeserved-indeed,
she
presents
enough
evidence that we may safely presume her to
be blameless (or nearly so} in each instance
for
summary
judgment purposes
but
a
criticism
that
carries
with
it
no
consequences is not materially adverse and
therefore not actionable. In the end, this
means her retaliation claim fails as a
matter of law.
Bhatti v.
2011);

Trustees of Boston Univ.,

accord Perry v.

Cir. 2015}

Rogers,

659 F.3d 64,

627 F.

73

App'x 823,

(1st Cir.

832-33

(11th

("Perry has failed to set forth any evidence showing

how this written reprimand negatively affected her in a material
way"}, cert. denied sub nom. Aaron v. Alabama Alcoholic Beverage
Control Bd.,

136 S.

Houston Area,
claims

that

418
he

Ct.
F.

was

1228

(2016);

App'x

347,

given

a

unauthorized overtime ...

353

Noack,

'sometimes

wound up
Inc.,

272

F.

...

working
App 1 x

("Noack

for

working

admitted that he did

He only claims that he

extra'") ;

507,

2011)

reprimand

however,

'significant harms'

YMCA of Greater

(5th Cir.

written

not suffer any

Signature,

Noack v.

511

v.

Allen

(7th Cir.

2008).

Am.

The

Tenth Circuit is an outlier on this issue. Hamby v. Assoc. Ctrs.
For Therapy,

230 Fed.

App'x 772,

778

(10th Cir.

2007)

("Hamby

began receiving an increased number of reprimands, a challenged
action

which

a

reasonable

employee

adverse.").
52

would

find

materially

In

sum,

this

Court's

own

analysis

under

the

governing

principles of White, other cases from within the Fourth Circuit,
and the decisions of other appellate courts all demonstrate that
allegation of a
consequences,

reprimand,

does

not

without alleging any other adverse

properly plead the

type of materially

adverse action that would deter a reasonable worker engaging in
protected

activity

and

thus

does

not

statisfy

element of a Title VII retaliation claim.
that

Count

reprimands,

II

is

Count

based
II

on

fails

the

to

adversity

Hence, to the extent

August

allege

the

a

and

September

cognizable

2013

claim for

Title VII retaliation.
(b)

The

importance

"adverse
adverse

Denial Of Class-Taking Privileges Can
Materially Adverse Depending On Facts

of

employment
action"

the

action"

distinction
standard

standard becomes

and

between
White's

significant

when

Be

Coleman's
"materially
considering

whether denial of classes can serve as the basis for Title VII
retaliation claim.
being

denied

the

VUU argues that Hinton "fails to allege how
opportunity

to

take

(VCU]

classes

had

any

impact on his employment at VUU or would otherwise dissuade a
reasonable

employee

(Def.' s Reply 13)
(reciting
retaliation

the

from

engaging

in

a

protected

activity."

(emphasis added) ; see also (Def.' s Mem. 12-13)

"adverse

context} .

employment

Under White,

53

action"
Hinton

is

standard
not

in

required

the
to

plead

that

his

employment."

employer's

Instead,

misconduct

the

only

"had

inquiry

any

impact

on

is

whether

his

VUU's

misconduct was so materially adverse as to dissuade a reasonable
employee from engaging in protected activity.
VUU

cites

for

the

proposition

that

denial

The cases that
of

class-taking

opportunities would not deter a reasonable employee are largely
unpersuasive.
First, the cases upon which VUU relies for the proposition
that

denial

of

class-taking

opportunities

are

not

materially

adverse are unpersuasive because they are tainted by reference
to

the

higher

standard

of

"adverse

employment

action,"

in

contradiction of White's clear statement that impact on terms of
employment is not necessary to establish material adversity. For
example,
training
Chapman

VUU cites Chapman for
opportunities
relies

upon

is

the

the proposition that denial of

not

materially

improper

"adverse

adverse.
employment

standard.
To
make
out
a
prima
facie
case
of
discrimination
under
Title
VII,
the
plaintiff must show that:
( 1)
she is a
member of a protected class; (2) her job
performance was satisfactory; ( 3) an adverse
employment action was taken against her; and
(4) similarly-situated employees outside the
protected

class

received

more

favorable

treatment
To make out a prima f acie
case of retaliation under Title VII,
a
plaintiff must show that: ( 1) she engaged in
protected activity;
( 2}
she suffered an
adverse employment action; and ( 3) a causal
54

However,
action"

connection existed between the protected
activity and the adverse employment action.
Plaintiff Chapman's Title VII claims based
on . . . denial of training opportunities and
developmental
work
assignments
fail
because Chapman has failed to show that
these actions had a significant detrimental
effect on her or her employment status or
were otherwise materially adverse. None of
these actions altered the terms or benefits
of Chapman 1 s
employment,
and,
therefore,
none can satisfy the adverse employment
action element of a Title VII discrimination
claim. Further, none of these actions can
satisfy the adverse action element of a
Title VII retaliation claim because none was
so detrimental that a reasonable employee
would have been dissuaded from reporting
discrimination as a result. Thus, Chapman
fails to support the adverse action element
of either a discrimination or retaliation
claim under Title VII.
Chapman v. Geithner, No.
at *15,
{4th

*22

Cir.

(E.D.
2013).

Va.

l:ll-CV-1016 GBL/TRJ, 2012 WL 1533514,

Apr.

VUU's

30,

2012)

reliance

on

aff'd,

507

Chapman

is

F.

App'x 299

problematic,

because Chapman improperly recites the elements of a prima facie
retaliation claim,

and appears to inject a question of "effect

on employment status" into both Title VII discrimination claims
and Title VII
action"

retaliation

analysis

claims.

is distinct

Because

"materially adverse

f rem "adverse employment action"

and does not require any ''effect . . . on employment status," the
Court cannot accept Chapman as disposi ti ve as to the material
adversity {or lack thereof} of Hinton's denial of classes. VUU's
other citation suffers

from similar flaws.

55

In Napolitano,

the

court

held

that

" [ dJ enial

of

training

materially adverse only if there is a
employment
not

conditions,

alleged

any

status,

significant

'objectively tangible harm'

opportunities

'material change in

or benefits
change

in

Plaintiff has
her

Napoli ta no,

186,

citations

{D.D.C.

2011}

employment

or

as a result of not receiving these

training opportunities." Allen v.
204

is

{internal

77 4 F.

omitted}.

Supp.

2d

Although

Napolitano correctly used "materially adverse action" to define
the second element of a prima facie claim for retaliation,
improperly

attached

"change

requirement for actionabili ty.

in

employment

conditions"

as

it
a

The injection of requirement is

at odds with White's holding that a retaliation claim need not
plead material changes to employment conditions. 29

The problems presented by Chapman {incorrect statement of
prima facie case}
and Napolitano
{improper requirement of
effects on employment)
appear fairly common across cases
considering denial of training. ~, Loomis v. Starkville
Mississippi Pub. Sch. Dist., No. 114CV00159DMBDAS, 2015 WIL
9125943, at *16 (N.D. Miss. Dec. 15, 2015); Johnson v. Watkins,
803 F. Supp. 2d 561, 571-72 (S.D. Miss. 2011), Riley v. Delaware
River & Bay Auth., 661 F. Supp. 2d 456, 470-71 (0. Del. 2009),
Sekyeye v. City of New York, No. 05 CIV. 7192BSJDCF, 2009 WL
773311, at *4 (S.D.N.Y. Mar. 18, 2009);
Beaumont v. Texas Dep't
of Criminal Justice, 468 F. Supp. 2d 907, 929-30 (E. D. Tex.
2006).
Certainly, the White Court contemplated that effect on
employment was a
factor tending to make a given action
"materially adverse." ~' White, 548 U.S. at 68 (contemplating
denial of training lunches as material adversity). Just as
certainly, the White Court rejected the notion that effect on
employment is a necessary predicate for establishing material
adversity. Id. at 63-67.

29

56

Second,
left

one

open

the

constituted

of

the

upon which

possibility

"material

relied on Blomker v.
853617, at *8

cases

that

adversity."
Jewell,

(D. Minn.

No.

Feb. 26,

VUU

denial
In

CIV.A.

its

relies
of

actually

class-taking

opening

brief,

14-174 JRT/TN,

VUU

2015 WL

2015) for the proposition that

not providing classes could never rise to the level of material
adversity. Blomker does not reach as far as VUU claims.
While being denied the opportunity to take
classes
may
be
a
nascent
instance
of
damaging
"an
employee's
future
career
prospects," see (Jackman v. Fifth Judicial
Dist. Dep't of Corr. Servs., 728 F.3d 800,
804 (8th Cir. 2013)], there is no allegation
that being denied this opportunity was a
change from how Plaintiff was treated before
she filed her EEO complaints.
Id. at *8. 30 That is: the plaintiff failed to allege retaliation,
and

the

court

did

not

rule

on

whether

being

denied

the

opportunity to take classes constituted material adversity.
Third,

Hinton's

even

citation

though

it

recites

stricter standard of "adverse employment action" line with the Supreme Court's decision in White.
principally on

Kennedy

v.

Univ., 781 F. Supp. 2d 297,

Virginia

Polytechnic

the

is most in

Hinton relies
Inst.

&

State

304 (W.D. Va. 2011). In Kennedy, the

plaintiff stated that:

30

Jackman held that denial of the ability to take classes was
not
''adverse
employment
action"
in
the
context
of
discrimination.
57

she suffered adverse employment actions in
that Virginia Tech unnecessarily reprimanded
her by changing her agreed performance
criteria without notice, required her to
meet
objectively
impossible
benchmarks,
denied her important training opportunities,
and insisted that she provide copies of
business trip receipts when Virginia Tech
lost the originals
the Court cannot
conclude,
as a matter of law,
that a
reasonable jury could not find that Kennedy
suffered an adverse action.
Id.

at 304.

Court

has

Kennedy is in line with White,
explicitly

professional
adverse

noted

advancement

so as

to deter a

protected activities"
U.S.

at

69.

There

is

that

denying

likely

to

reasonable

certainly

a

opportunities

meet

the

person

standard in most

is

where the Supreme

"materially

from engaging

situations.

clear

for

White,

distinction

in
548

between

training and generally "ta king classes," in that "classes" can
be completely unrelated to professional development
attorney taking painting classes) .
that

professional

are

not

Instead,

development

dispositive

in

a

However,

White makes

and opportunity
"materially

(~,

for

adverse"

an

clear

advancement
analysis.

the question is whether a reasonable employee,

knowing

that he might be deprived of the benefit of taking classes for
engaging in protected activity, would be deterred from engaging
in that protected activity.
In

response

matter of law,

to

that

that a

question,

it

cannot

be

said,

as

a

reasonable person would not be deterred

58

from engaging in protected activity with the prospect of losing
class-ta king
beyond

the

privileges
incivility,

minor annoyances,

on

the

line.

ordinary

Such

an

imposition

tribulations,

personality conflicts,

petty

snubbing,

goes

slights,

or

lack of

manners which the White Court intended to exclude from the realm
of "material adversity." White,

548 U.S. at 68.

all assumptions in Hinton's favor,

Rather, drawing

it is plausible that denial

of such an opportunity for personal enrichment is sufficiently
materially adverse

so as

to deter a

reasonable

employee

from

engaging in protected activity.
Applying

the

"materially

adverse"

standard

of

White

and

Mascone rather than the "adverse employment action" of Coleman,
Hinton

has

adequately

pled

that

VUU

engaged

in

materially

adverse action against him. Whether that turns out to be so must
abide factual development.
Short-Term Denial Affects "Materiality," But
Requires Factual Development

(c)

VUU

argues

that,

"materially adverse,"

even

if

inability

short-term actions,

to

take

such

as

classes
the

is

one at

issue here, are less likely to dissuade a reasonable person than
permanent actions,
not

dissuade a

activities.
Phoenix,

such that short term denial of classes would

reasonable employee

(Def.'s

Reply

3:12-cv-00621-HEH

13

from engaging in protected

n.9);

see

(Docket No. 12),

59

also
7

Cole

(E.D. Va.

v.

Hill

Feb. 7,

2013)

(finding that delayed paycheck did not constitute material

adversity

where

informed).

human

Because

resources

Hinton's

department

subsequent

acted

as

supervisor

soon

as

permitted

Hinton to take classes,

VUU argues that the denial of classes

was so brief

immaterial)

(and thus

that it would not deter a

reasonable employee.
In this case,

however,

as Hinton's supervisor.

it is unclear how long Green served
~

(Compl.

19). A year of deprivation is

considerably different than a month of deprivation. On the facts
as pled, VUU's brevity argument is not persuasive one way or the
other, and, at this stage, does not support dismissal.

3.

Hinton Sufficiently Stated A Causal Link

To state a claim for
causal
action.
218

retaliation,

plaintiff must plead a

link between the protected activity and the employment
~,

Holland v.

Washington Homes,

Inc.,

4 87 F. 3d 208,

(4th Cir. 2007). A "causal link" requires that the employer

knew of the protected activities and that a reasonable temporal
connection

exists

between

the

protected

activities

and

the

materially adverse misconduct. Id.
Because the August and September 2013 reprimands were not
materially adverse action,
causal

links

between

EEOC activities,

it is necessary to consider only the

Hinton's

protected

activities

(two

2008

Hinton's May 2 013 complaint about equal pay,
60

and

Hinton's

September

2013

EEOC

filing)

and

the

remaining

materially adverse actions (denial of class-taking privileges.)

Hinton
Sufficiently
Alleges
Green's
Knowledge Of The 2008 and May 2013 Protected
Activity,
But
Not
The
September
2013
Activity

(a)

Hinton

has

sufficiently

alleged Green's

2008 and May 2013

protected activities,

2013

Holland,

activities.

explicitly
charge.

alleges

(Compl.

that

about

unequal

past

outspoken

but not

at

218.

about

the

the September
First,

Hinton's

although

of

Hinton

2008

Hinton

EEOC

does

not

knew about Hinton's 2013 internal

pay,

before becoming Hinton's
Hinton's

knew

Second,

explicitly allege that Green
complaint

F.3d

Green

11) .

<JI

487

knowledge

Hinton

supervisor,
support

for

alleges

generally

"Green was
his

own

well

civil

that,

aware of

rights"

in

part because Hinton frequently conversed with Green's assistant
"about

their

statement
infer

lives

provides
making

defendant

and
facts

all

that

VUU
from

matters."
which

reasonable
Green

was

(Compl.

the

Court

inferences
aware

of

in

<JI

can

11).

reasonably

favor

Hinton's

This

of

May

the
2013

activities.
However,

Hinton has not pled any facts which even tend to

indicate that Green was aware of the September 2013 EEOC filing.
As a result, Hinton's claim will be dismissed to the extent that
it pleads retaliation for the September 2013 protected activity.

61

(b)

When

pleading

Hinton's Claim Is Not Barred By Lack of
Temporal Proximity Because Hinton Pleads
That
Green
Retaliated
At
The
"First
Opportunity"
And
That
Green
Acted
On
Continuing Animus

a

sufficient

case,

either

the

retaliation

must closely follow the protected activity or the plaintiff must
put forth a sufficient explanation for the time elapsed between
the protected activity and the alleged retaliation.
Save for situations in which the adverse
employment decision follows the protected
activity "very close[ly)," "mere temporal
proximity"
between
the
two
events
is
insufficient
to
satisfy
the
causation
element of the prima
facie
requirement.
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509
( 2001)
(per curiam)
(internal quotations
omitted) .
Al though
neither
we
nor
the
Supreme Court have adopted a bright temporal
line, we have held that a three- or fourmonth lapse between the protected activities
and discharge was "too long to establish a
causal
connection
by
temporal
proximity
alone," Pascual v. Lowe's Home Ctrs., Inc.,
193 Fed. Appx. 229, 233 (4th Cir. 2006)
(unpublished).
Even
a
mere
ten-week
separation between the protected activity
and termination "is sufficiently long so as
to weaken significantly the inference of
causation between the two events." King v.
Rumsfeld, 328 F.3d 145, 151 n. 5 (4th Cir.
2003). Where the time between the events is
too
great
to
establish
causation
based
solely on temporal proximity, a plaintiff
must present "other relevant evidence ... to
establish causation," such as "continuing
retaliatory
conduct
and
animus"
in
the
intervening period. Lettieri v. Eguant Inc.,
478 F.3d 640, 650 (4th Cir. 2007).

62

Perry v. Kappes, 489 F. App'x 637, 643 (4th Cir. 2012) . 31
As to September 2013 EEOC filing,

it is difficult to tell

from the Complaint how much time passed between the protected
activity {September 10, 2013) and the time when Green prohibited
Hinton from taking classes
on

which

Hinton

impossible

was

for

(unspecified). The absence of a date

forbidden

the

Court,

from

taking
drawing

even

classes

makes

"all

it

plausible

inferences" in Hinton's favor from the facts as alleged, to find
that Hinton was forbidden from taking classes in retaliation for
the

September

dismissed
privileges

in

2013
part

being

EEOC
as

Thus,

complaint.

it

pertains

retaliation

for

to

Count

denial

Hinton's

II

of

must

be

class-taking

September 2013

EEOC

charge.
That

leaves

a

question of

whether

Hinton's

2008

and May

2013 protected activity are so far removed from Green's refusal
to

allow

Hinton

to

take

classes

(which

occurred,

at

the

earliest, in August 2013, when Green became Hinton's supervisor)
to serve as the basis for a sufficiently pled retaliation claim.
Hinton can only overcome the extended period of time between the
protected activity and the alleged retaliation if Hinton pleads
other relevant facts. Perry, 489 F. App'x at 643.

31

Al though unpublished,
published opinions.

Perry presents
63

a

succinct

summary of

Hinton proffers
opportunity

to

such other relevant

retaliate"

theory:

facts

that

Green

under a

"first

took materially

adverse action against Hinton at the first opportunity after she
acquired

power

over

Hinton.

(Pl.' s

Opp.

14-15).

"First
~,

opportunity" is typically part of rehiring jurisprudence.
Price v. Thompson, 380 F.3d 209, 213
without

deciding,

"that

in

the

(4th Cir. 2004)

failure-to-hire

(assuming,

context,

the

employer's knowledge coupled with an adverse action taken at the
first opportunity satisfies the causal connection element of the
prima facie case"); see also Templeton v.
N.A.,

424

F.

App'x 249,

251

(4th Cir.

First Tennessee Bank,
2011).

However,

opportunity" does not arise only in rehiring cases.
v. Mecklenburg Cty.,
decisionmaker's
established
becoming

151 F. App'x 275,

inconsistent

policy,

aware

evidence for

a

action

rendered

of

at

protected

reasonable

280
in

"first
Martin

~,

(4th Cir. 2005)
violation

of

("A

well-

the first opportunity after

conduct,

provides

jury to conclude at

sufficient

the very least

that some consideration of this protected conduct played a role
in

the

month

contested

employment

gap between

decision";

protected conduct

permitting

and

alleged

see also Johnson v. Scott Clark Honda, No.
2014 WL 1654128,

at *4

App'x

Cir.

180

employee's

(4th

request

to

(W.D.N.C. Apr.
2014)
become

(applying
a
64

full

25,

eleven-

retaliation);

3:13-CV-485-RJC-DCK,
2014),

"first
time

an

aff'd,

584 F.

opportunity"

employee).

It

is

to
a

logical extension of the "first opportunity" rule as employed in
Martin to find that Hinton has stated a claim for retaliation
because:

(1) Hinton engaged in protected activity in 2008 and in

May 2013;

(2) Green retaliated by forbidding Hinton from taking

classes; and

(3)

Green retaliated

(a)

at her first opportunity

to exercise authority over him and (b) at the first opportunity
that he made a request

(the request to take classes)

that she

could deny.
Additionally,
is

one

type

of

Letteri establishes that "continuing animus"

''other

relevant

causation

notwithstanding

Lettieri,

47 8

(Compl.

18),

<JI

F. 3d at

a

650.

evidence"

significant
Hinton has

that

can

establish

intervening

period.

pled continuing animus

making a causal link even more probable on the

basis of the facts as pled.
VUU

argues

that

application

theory is "implausible."

of

the

(VUU Reply 11)

"first

opportunity"

("this Court would have

to take the leap that Dr. Green was lying in wait for five years
The Court

(and then] seized on the opportunity to retaliate
would

likewise

need

to

find

that

Dr.

Green,

for

five

years,

restrained herself from harassing Hinton as a co-worker working
in close proximity,
combination
however,
that

of

allows

there

was

despite

"first
a

opportunity"

plausible
a

her discriminatory animus.") .

causal

and

inference
link
65

"continuing

from

between

the

facts

Hinton's

The

animus,"
as

pled

protected

activities

and

Green's

denial

of

the

opportunity

to

take

classes, and plausibility is all that is required in the face of
a motion to dismiss.
For the foregoing reasons,

the motion to dismiss Count II

will be granted as it pertains to:
2013 reprimands;

and

(2)

(1)

the August and September

the refusal to allow class-taking as

retaliation for the September 2013 EEOC complaint.

However, the

motion to dismiss Count I I will be denied as it pertains to the
refusal to allow class-taking as retaliation for the 2008 EEOC
activity and the May 2013 internal complaint.

C.

Count III: Title VII Retaliatory Harassment

For the reasons stated below,

Count I I I will be dismissed

in its entirety.
A prima facie 32 claim for retaliatory harassment 33 requires
establishing the
the

same facts

"materially adverse"

severe

or

Laster v.
2 014),

pervasive

element is

retaliatory

City of Kalamazoo,

reh 1 g denied

a retaliation claim,

as

(Apr.

2,

746

replaced by "subjected to

harassment
F.3d 714,

2014) ) ;

save that

by

a

supervisor."

731 n.5

(6th Cir.

see also Boyer-Liberto v.

32

As discussed above, Hinton has not pled facts sufficient to
allow
him to proceed under
the
"direct" method on his
retaliation and retaliatory harassment claims.
33

Retaliatory harassment is sometimes known as "retaliatory
hostile work environment."~' Thorn, 766 F. Supp. 2d at 600.
66

Fontainebleau

Corp.,

786

Therefore,

to

a

prima

harassment,

Hinton must

plead:

activity;

(2)

state

F.3d

that

he

was

264,

283

facie
{1)

(4th

claim

for

engagement

subjected

retaliatory harassment by a supervisor;

to

Cir.

and

(3)

retaliatory

in

severe

a

protected

or

pervasive

a causal link

between the protected activity and the harassment.

34

2015) , 34

White,

54 8

The continued improper use of "adverse employment action" in
Fourth Circuit opinions impacts the way that courts within the
Fourth Circuit think about the kind of conduct which suffices to
prove
retaliatory
harassment.
~,
Sonnier
v.
Diamond
Healthcare Corp., 114 F. Supp. 3d 349, 360 {E.D. Va. 2015)
(discussing retaliatory harassment in terms of effect on terms
of employment) .
The Sixth Circuit uses a slightly different test for
retaliation claims than the Fourth Circuit, but the slight
difference is not so material that the Sixth Circuit's decisions
are not an appropriate guide for what the Fourth Circuit would
do if the Fourth Circuit consistently used "materially adverse"
in its retaliation jurisprudence. The Fourth Circuit uses: (1)
protected action; {2) adverse employment action or materially
adverse action; and (3) causation. ~' Coleman, 626 F.3d at
190. The Sixth Circuit uses:
(1) protected action; (2) the
person taking materially adverse action knew of the protected
action;
(3} materially adverse action;
(4) causation. ~'
Laster, 746 F.3d at 731. In other words, the Fourth Circuit
bundles the bad actor's awareness into the causation element,
and the Sixth Circuit separates awareness and causation. The
tests are sufficiently similar that the Sixth Circuit is an
appropriate model
for
prima
f acie
claims
of
retaliatory
harassment in the wake of White.
Moreover, the Sixth Circuit's "subjected to severe or
pervasive retaliatory harassment by a supervisor" is in line
with the Fourth Circuit's observance that severity and frequency
are highly significant to finding retaliatory harassment. BoyerLiberto, 786 F.3d at 283 {stating the incorrect and more
restrictive ''adverse employment action" formulation of a prima
facie claim for retaliation) . Thus, under both the Sixth and
Fourth Circuit formulations, severity and frequency underpin the
ultimate retaliatory harassment finding.
67

U.S. at 67; Boyer-Liberto,

786 F.3d at 283; Laster,

746 F.3d at

731; Mascone, 404 F. App'x at 765.
As

to

the

first

element,

the

only protected actions

the

Court may consider are Hinton's 2008 EEOC actions and his May
2013 internal complaint.

As discussed in the previous section,

the September 2013 EEOC charge cannot serve as the "protected
activity" predicate,

because:

(1)

it occurred after the August

and September 2013 reprimands; and (2) Hinton has not pled facts
sufficient for the Court to plausibly infer that Green learned
of the September 2013 EEOC charge prior to engaging in allegedly
harassing activities.
As

to

the

third

element,

as

discussed

in

the

previous

section, Hinton has sufficiently pled causation between his 2008
and May
August

2013
2013,

activities
because

he

and

Green's

alleges

that

retaliation
Green

beginning

retaliated at

in
the

first opportunity and alleges continuing animus.
Thus,
"severe

the

remaining

or pervasive

and

disposi ti ve

retaliatory

question

harassment

by a

is

that

of

supervisor."

Boyer-Liberto, 786 F.3d at 283; Laster, 746 F.3d at 731. Because
Title

VII

questions
Supreme
employee

does
of

not

protect

''severity"

Court's
would

standard
have

against

should be
for

found

minor

considered

retaliation:
the

challenged

workplace
in

that

light
a

action

harms,
of the

"reasonable
materially

adverse" such that a reasonable employee would be dissuaded from
68

engaging in protected activity.

White,

548 U.S.

68.

Under this

test, there is a sliding scale of severity versus pervasiveness:
a

single

instance

"physically

of

misconduct

threatening

or

is

sufficient
~,

humiliating,"

when

it

is

Boyer-Liberto,

786 F.3d at 268, but even numerous instances of misconduct will
not

establish

retaliatory

misconduct is minor.
In

this

misconduct:

case,

~,

harassment

each

instance

of

Thorn, 766 F. Supp. 2d at 601.

Hinton

two verbal

when

has

alleged

reprimands,

four

one written

instances
reprimand,

of
and

the denial of class-taking privileges. As previously discussed,
the

toothless

reprimands

of August

and September 2013 are

minor that they would not dissuade a
engaging in protected activity.

so

reasonable employee from

They are therefore entitled to

no consideration in a "severe or pervasive" analysis. Moreover,
although

denial

of

class-taking

privileges

was

sufficient

to

state a claim for retaliation, it is not the sort of "physically
threatening

or

humiliating"

misconduct

that

allows

incident to support a retaliatory harassment claim.

a

~,

single
Boyer-

Liberto, 786 F.3d at 268.
For the foregoing reasons,

VUU's motion will be granted as

it pertains to Count III, and Count III will be dismissed in its
entirety.

69

D.

Count IV: Equal Pay Act
Count

IV will not be dismissed because Hinton has stated

facts from which it may be reasonably inferred that he and the
comparable

female

administrative

assistants

hold

jobs

that

require equal skill, effort, and responsibility.
To successfully plead a

prima

Pay Act, a plaintiff must allege:

f acie case under the Equal

(1) that his employer has paid

different wages

to employees of opposite sexes;

employees

jobs

hold

responsibility;

that

and

Club,

Corning

Glass

180

Works

v.

(relying on Brinkley v.

2003)

F.3d

are

and

63 F.

Recreation

jobs

effort,

similar working conditions." Gustin v. W. Virginia Univ.,
(4th Cir.

such

skill,

under

698

that

equal

that said

performed

App 1 x 695,

(3)

require

(2)

598,

Brennan,

613

(4th

Cir.

1999)

417

U.S.

188,

189,

Harbour
(citing
94

S.Ct.

2223, 41 L.Ed.2d 1 (1974))). Although "to make out a prima facie
case under the EPA,
that the skill,

the burden falls on the plaintiff to show

effort and responsibility required in her

job

performance are equal to those of a higher-paid" employee of the
opposite

sex,

" [ i Jn

interpreting

substantially equal." Wheatley v.
F. 3d 32 8,

332

(4th Cir.

2004)

the

EPA,

Wicomico Cty.,

[e]qual

means

Maryland,

(emphasis in original)

390

(internal

citations omitted).
In this case,

Hinton has alleged that he is paid less than

female administrative assistants.
70

(Compl.

'II 20).

From Hinton's

allegations,

the Court can reasonably infer that Hinton and the

identified female administrative assistants perform their jobs
under

similar

identified

female

department.
VUU

working

administrative
~

(Compl.

targets

conditions,

the

in

that

assistants

Hinton
work

and

the

in

the

same

Hinton

has

pled

20).
second element:

whether

facts from which it may reasonably be inferred that Hinton and
the identified female administrative assistants ''hold jobs that
require equal skill,
17-18;

Def.' s

Reply

effort,
16-18).

differences

in

seniority,

production"

between

and responsibility."
Hinton

pled that

merit,

quantity

or

Hinton

assistance in the department.

the

(Comp!.

~

(Def.' s Mem.

"[t] here are

no

or

of

female

quality

administrative

45).

VUU's attack on Hinton's pleading relies on Earl v. Norfolk
State Univ.,
Feb.

13,

professor

No.

2014).

2:13CV148,
In

relied

Earl,
on

a

2014 WL 583972,
the

plaintiff

"statistical

at
a

*1

(E.D.

male

analysis"

of

11

Va.

adjunct
sample

salaries of other adjunct professors at the university to plead
the first element of a prima facie Equal Pay claim: that his own
salary

was

lower

than

female

university.

Earl,

2014

WL

adjunct

583972

at

professors
*l.

Earl

across

the

attempted

to

establish the second element of an Equal Pay claim by stating
that he was "at least as qualified" as the female adjuncts, that
the "responsibilities of the job were essentially equivalent,"
71

that he had "comparable qualifications and responsibilities, and
skill" across the university. Earl, 2014 WL 583972, at *l, 5-6. 35
Earl

did not

therefore,
effort,

identify any of

the

Earl,

comparators.

specifically

WL

*5-6.

found

2014

that

Earl

583972,

"made no

and responsibilities

at

alleged

reference

required of

The

to

[him]

female
court,

the

skills,

or to those of

the [female adjuncts]." Earl, 2014 WL 583972, at *6. "Therefore,
no

comparisons

of
can

responsibilities
plaintiff

cannot

their
be

rest

respective

made
on

Indeed,

the

bare

receiving lower pay for equal work;
comparison [he]

skills,

this

case,

Equal

allegation

and

Pay

that

Act

[he]

is

[he] must also show that the

is making is an appropriate one." Earl, 2014 WL

583972, at *6 (internal quotations omitted)
Bd. of Trs.,

an

effort,

55 F.3d 943,
Earl

was

950

(relying on Strag v.

(4th Cir. 1985)). However, unlike

complicated

by

the

facts

that:

( 1)

the

plaintiff presented a statistical study, rather than identifying
specific comparable individuals,

and

(2)

the study covered the

entire university, not a single department or office. Earl, 2014

WL 583972, at *l, 5. Because Earl failed to identify any alleged
comparators,
plausibly

the

infer

court
that

had

the

no

female

35

facts

from

adjuncts

which

across

it
the

could
entire

The equivalent in this case would be if Hinton had alleged
that he was paid less than female administrative assistants
across the university system,
in completely in different
departments, without adequately identifying any of these alleged
comparators.
72

university

held

jobs

which

required

equal

skill,

effort,

or

responsibility. Earl, 2014 WL 583972, at *l, 6.
Additionally,

the

decision

in

Earl

seems

to

implicitly

recognize that adjuncts across departments in a university are
likely to have different qualifications,
are more or less

to teach classes which

important to the university,

to do research

with greater or lesser importance to the university,

to carry

different workloads, and to produce different qualities of work
product.

By

where

contrast,

Hinton

has

pled

that

the

administrative assistants who work in the same department as him
hold the same jobs,
the

have the same qualifications,

same work product,

reasonable
Complaint

inferences

it
in

sufficiently

counterparts

hold

responsibility.
substance.

jobs

Any

is

perfectly plausible,

favor

alleges
that

contrary

and produce

of

Hinton,

that

require
finding

to

Hinton
equal

find
and

skill,

would

making all
that

his

the

female

effort,

elevate

form

and
over

Hinton has pled that the people who have the same

job title as him, who work in the same department, who have the
same qualifications,

and who do the same work as him are paid

differently than he is.

Requiring Hinton to plead more -

for

example, listing the daily activities or qualifications of every
administrative
detail

most

assistant

in

appropriately

the

department

determined

in

-

is

the

discovery.

sort

of

Requiring

such granular detail at this stage is at odds with Fed. R. Civ.
73

P.

B's requirement of "a short and plain statement of the claim

showing that the pleader is entitled to relief." Requiring that
kind of detail is not required by Twombly and Iqbal.
Drawing all reasonable inferences from the facts as pled in
favor of the plaintiff, it can plausibly be inferred that Hinton
and the female administrative assistants hold jobs that require
equal skill,

effort,

and

responsibility.

Thus,

Count

IV will

not be dismissed.

E.

Service of Process
Hinton filed

December 1,

2015,

his
Fed.

Complaint on September 18,
R.

Civ.

P.

4 {m)

2015.

Before

required plaintiffs to

serve process on a defendant within 120 days after filing of a
complaint. As of December 1, 2015,

Fed. R. Civ. P. 4(m) requires

service within 90 days after the complaint is filed. The Supreme
Court's Order transmitting the proposed rules to Congress states
that the amendments "shall take effect on December 1, 2015, and
shall

govern

commenced and,
then

in

all

proceedings

in

civil

cases

insofar as just and practicable,

pending."

Order,

Apr.

29

2015,

thereafter

all proceedings
available

at

http://www.supremecourt.gov/orders/courtorders/frcv15(update)_18
23.pdf.
Mem.

Hinton served his Complaint on January 14, 2016

(Def.'s

19), within the old 120-day window but out of the new 90-

day window.

74

VUU argues

that

the

new

90-day period should be applied

because it is "just and practicable" to do so.

(Def.'s Mem. 19-

20). In particular, VUU argues that:

(1) the proposed amendments

were

publicized

made

public

and

were

highly

in

April

2015,

months before Hinton filed his Complaint; and (2) VUU offered to
waive service.

{Def.'s Mem. 19).

However, VUU's facts establish, at most, that it would have
been practicable for Hinton to comply with the new Fed. R. Civ.
P.

4{m)

governing

service

of

process.

These

facts

do

not

establish that it would be just to apply the new Fed. R. Civ. P.
4(m). As a general matter, Hinton is intuitively correct that it
is unjust to expect parties to abide by deadline-setting rules
that

were

not

particular
Hinton

in

ef feet

activity.

presents

To

when

the

support

clock
this

began

ticking

intuitive

on

a

conclusion,

several district court decisions applying

the

old Fed. R. Civ. P. 4(m) to cases filed before December 1, 2015.
(Pl.'s

Opp.

19-20

n.13).

parties

in

[those]

cases

VUU

is

raised

correct
or

that

argued

"none

for

the

of

the

amended

version to apply," and the courts in question applied the old
rule

without

Nevertheless,

any

in-depth

discussion.

(Def.' s

Reply

19).

this string of citations is useful to show that,

if federal judges tend to believe the old Fed. R.

Civ.

P. 4(m)

applies

then

it was

to cases

filed

before

December

1,

2015,

reasonable for Hinton to believe that the old Fed.
75

R.

Civ.

P.

4 {m)

would apply to his case.

It would thus be unjust to hold

Hinton to the newer and shorter standard. Additionally,
particular case,
because

the

dismissing would work a particular injustice,

statute

of

limitations

on

the

expired during the time permitted for service.
Because

it

in this

would

not

deadline to this case,

be

just

to

Title

VII

claim

(Pl.'s Opp. 20).

apply

the

new

service

there is no need to determine whether

Hinton showed the kind of "good cause" which would justify the
Court

in

extending

the

time

needed

to

serve

the

Complaint.

(Def.'s Mem. 19-20).
Because it would not be just to apply the shorter service
period,

either as a general matter or in this particular case,

the Court will not dismiss for insufficient service.

CONCLUSION

For
COMPLAINT
part.

the

reasons

(Docket No.

stated
3)

above,

the

MOTION

TO

DISMISS

will be granted in part and denied in

The motion will be granted as to Count I and Count II I.

The motion will be granted as to Count I I as it pertains to:

( 1)

claims based on the August and September 2013 reprimands;

and

(2) based on Hinton's protected actions in September 2013.

The

motion will be denied as it pertains to the portion of Count II
alleging

the

opportunity

materially adverse
to

take

classes,

action

of

allegedly

76

denying
in

Hinton

the

retaliation

for

Hinton's

protected

activities

in

2008

and

in

May

2013.

The

motion will be denied as to Count IV. The motion will be denied
to the extent that

it alleges non-compliance with the

Federal

Rules.

It is so ORDERED.

Isl
Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date: May
2016

___Ji_,

77