Hinton v. Virginia Union University

Filing 31

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 7/19/2016. (sbea, )

~
JUL

f

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

rL

2 O 2016

fg

Plaintiff,

v.

Civil Action No. 3:15cv569

VIRGINIA UNION UNIVERSITY,
Defendant.
MEMORANDUM OPINION

This matter is before the Court on

Plaintiff's MOTION

FOR

ENTRY OF JUDGMENT UNDER RULE 54(b) OR, ALTERNATIVELY, TO CERTIFY
INTERLOCUTORY APPEAL UNDER 28

PROCEEDINGS

(Docket

No.

15).

U.S.C.

For

1292(b)

§

the

reasons

Plaintiff's MOTION

FOR ENTRY OF JUDGMENT

ALTERNATIVELY,

CERTIFY

U.S.C.

TO

AN

AND TO STAY

stated

UNDER RULE

INTERLOCUTORY

1292(b) AND TO STAY PROCEEDINGS

§

54 (b)

APPEAL

(Docket No.

below,

UNDER

OR,
28

15) will be

denied.
BACKGROUND

Plaintiff
Complaint
alleged

Terry

against
Title

Hinton

Virginia

VII

sexual

("Hinton")

filed

Union University
orientation

a

("VUU").

four-count
Count One

discrimination,

stating

several reprimands in August and September 2013 as the predicate
adverse

action.

(Compl.,

alleged Title VII
September

:1

2013

Docket

retaliation,

reprimands

and

No.

1,

stating
(2)

a

~~

(1)

26-29).

Count

Two

the same August and

supervisor's

refusal

to

11

/'

'-.Ii
__.)

CLERK, U.S. DISTRICT COURl
RICHMOND VA

TERRY HINTON,

AN

Ir\

,,
I

allow

Hinton

actions.

September

2013

actions.

take

the

Three

stating

also

(1)

and

VCU

as

Count

33-36).

reprimands
to

classes

(2)

a

classes

predicate
alleged

VII

same August

the

Title

and

supervisor's

as

the

adverse

refusal

predicate

to

adverse

'!!'II 39-41) . Count Four alleged an Equal Pay Act

(Comp!.

(Compl. '!!'II 4 3-4 6) .

claim.

On May 4,
an

2015,

the Court entered an Order {Docket No. 11)

accompanying
Mem.

( "12 (b) ( 6)
VUU' s

'!!'II

VCU

harassment,

Hinton

and

take

(Compl.

retaliatory

allow

to

Memorandum

Op.") , 1

granting

Motion to Dismiss

for

(Docket

Opinion
in

part

and

No.

10)

in

part

denying

Failure to State a Claim.

(Docket

No.

3). Count One was dismissed in its entirety on two grounds:

(1)

that under Fourth Circuit law, Title VII does not support a

claim

for

employment

orientation; and,
plead a
Op.

discrimination

in the alternative,

(2)

based

The

pertained

to

the

dismissed

Count

Court

dismissed

August
Three

in

and

Count

September

its

entirety

sexual

that Hinton failed to

cognizable "adverse employment action."

8-32).

upon

Two

in

(12 (b) (6)
part,

reprimands. 2
for

failure

Mem.

as

it

The

Court

to

state

Also at Hinton v. Virginia Union Univ.,
F.3d.
No.
3:15CV569, 2016 WL 2621967 (E.D. Va. May 5, 2016). The present
opinion is keyed to the pagination of the original order.
2

And also to the extent
served as
protected
retaliatory action of
chronology was not pled.

that the August and September reprimands
conduct
giving
rise
to
the
alleged
denying class-taking, because a proper
{Order, Docket No. 11).
2

sufficiently adverse harassment.

The Court

Count Four's Equal Pay Act claim.

(Order, Docket No. 11).

In

response,

Final

Judgment

Amend

the

Plaintiff

Pursuant

Court's

May

filed
Rule

to
4,

this
54(b)

2016

Order

Interlocutory Appeal Under 28 U.S.C.
and an accompanying memorandum
Hinton

seeks

to

immediately

Motion
or,
in

§

declined to dismiss

1292(b)

the

Entry

of

Alternatively,

Order

(Docket No.

appeal

for

17)

to

Certify

(Docket No.

a
to
an

12)

("Pl.' s Mem. ") .

Court's

determination

that Title VII does not support a claim for discrimination based
upon sexual orientation, either through a partial entry of final
judgment under Fed. R. Civ. P.

54 or through certification of an

interlocutory

to

appeal

pursuant

28

u. S. C.

§

12 92 (b) .

(Pl.'

s

Mem. 1) .
ANALYSIS

II.

ENTRY OF A PARTIAL FINAL ORDER OF JUDGMENT IS IMPROPER

A.

Legal Standard

Fed.

R.

Civ.

P.

54(b)

provides

that

"[w]hen

an

action

presents more than one claim for relief . . . the court may direct
entry of a final judgment as to one or more, but fewer than all,
claims or parties only if

the court expressly determines

there is no just reason for delay."
The tack which the district court must follow
to effectuate a Rule 54(b)
certification
involves two steps
First, the district
court must determine whether the judgment is
final .... a judgment "must be 'final' in the
3

that

sense that it is 'an ultimate disposition of
an individual claim entered in the course of
a multiple claims action.' "
... Second, the
district court must determine whether there
is no just reason for the delay in the entry
of judgment.
Braswell Shipyards,
(4th Cir.
Co.,

446

19 93)
U.S.

determination,

Inc.

v.

Beazer E.,

Inc.,

2 F. 3d 1331,

(relying on Curtiss-Wright Corp.
1,

12

(1980)).

"factors

In making

the

the district court

v.

"no

Gen.

just

1335
Elec.

reason"

should consider,

if

applicable, include":
( 1) the relationship between the adjudicated
and unadjudicated claims; (2) the possibility
that the need for review might or might not
be mooted by future developments in the
district court; (3) the possibility that the
reviewing court might be obliged to consider
the same issue a
second time;
( 4)
the
presence
or
absence
of
a
claim
or
counterclaim which could result in a set-off
against the judgment sought to be made final;
(5)
miscellaneous factors such as delay,
economic
and
solvency
considerations,
shortening the time of trial, frivolity of
competing claims, expense, and the like.
Braswell Shipyards,
Wright

Corp.,

Inc.,

4 4 6 U.S.

2 F.3d at 1335-36 (relying on Curtissat

1) .

Finally,

the

Supreme Court

rourth Circuit have recognized that Rule 54 (b)
an

exceptional

procedure.

Curtiss-Wright,

446

and

certification is
U.S.

1

at

10;

Braswell Shipyards, Inc. 2 Fed. 3d at 1335.
There can be no question that the first step is satisfied:
the May 4, 2016 order was a final order that dismissed Count One

4

with prejudice. The dispositive issue,

then,

is "just reason for

delay."
B.

Just Reason for Delay

The

factors

uniformly

enumerated

demonstrate

in

that

Braswell

Rule

Shipyards,

Inc.

certification

54 ( b)

is

inappropriate in this case.
1. Relationship between Adjudicated and Unadjudicated
Claims

The first
unadjudicated

factor,
claims,

the relationship between adjudicated and
is

either

neutral

or

weakly

counsels

against entry of a final judgment.
The

Court

orientation

dismissed

Count

discrimination

in

One,

the

a

form

claim
of

for

the

sexual

August

and

September reprimands, and also dismissed Count Two to the extent
that

it

alleged

retaliation

September reprimands.
the

case

denial

are

Count

(Order,
Two,

in

the

form

of

the

August

and

Docket No. 11). The claims left in

alleging

of class-taking privileges

conduct between 2008 and May 2013,

retaliation
in

in

retaliation

the
for

and Count Four,

form

of

protected

alleging an

Equal Pay Act claim.
Hinton concedes
employment and thus,

that

"all of

[his]

claims

related to his

at least in some respects,

they arise out

of a common set of facts," but asserts that "the adjudicated and
unadjudicated

claims

in

this

case

5

involve

distinct,

discrete,

and different

questions

of

law."

(Pl.' s

Mem.

6)

(emphasis

in

original) . Hinton is of the view that the distinct question of
law weighs in favor of entry of a final judgment because several
other district courts

have permitted entry of a

partial

final

judgment where claims involve a common set of facts but distinct
legal

theories.

Electrical,
1094,

(Pl.'s

etc.

1098-99

Fund,

Mar.

Inc.

v.

Cir.

Inc.,
31,

6-7)

(relying

Westinghouse

(3rd

Mortgage Inv' rs,
(W.D.N.C.

v.

Mem.

Electrical

1980);

No.

on

GMAC

Mortgage,

lB,

631

LLC

of

F.2d

v.

Flick

2012 WL 1098 633

Neuberger Berman Real

Lola Brown Trust No.

Union

Corp.,

3: 0 9-CV-125-RJC-DSC,

2012);

Int'l

Estate

225 F.R.D.

171

Income
(D.

Md.

2004)). Read more properly, these cases do not weigh in favor of
entry

of

a

final

judgment;

they

at

best

show

that

it

is

permissible to enter final judgment when claims arise out of the
same facts but involve different legal theories. By Hinton's own
characterization of the record, this factor is neutral at best.
VUU disputes Hinton's characterization,
does

not

properly

reflect

the

counts

Complaint

originally

pled:

Count

September

reprimands

served

as

Two,

where

either

the

August

currently

One,

the
and

but VUU' s argument

where

adverse
September

in

the

action,

play.

The

August

and

and

reprimands

Count
or

the

denial of class-taking privileges served as the adverse action.
(Def.'s

Resp.

(denial

of

4-6).

VUU

class-taking

argues

that,

privileges)
6

because

and

the

same

substantially

facts

similar

legal

standards

(discrimination's

"adverse

employment

action"

and retaliation's similar-but-slightly-lower "materially adverse
action")

are in play,

the legal standards are not sufficiently

distinct to fall within the reach of GMAC, Neuberger-Berman, and
Int'l Union.
Court

(Def.'s Resp.

dismissed

September

Count

4-6). This ignores, however,

Two

reprimands.

as

it

Therefore,

pertained
the

to

the

adjudicated

that the

August

and

claims

are

"sexual orientation discrimination in the form of the August and
September

reprimands"

and

the

unadjudicated

are

claims

"retaliation in the form of denial of class-taking privileges."
Thus, VUU is incorrect to say that "the same set of facts - Dr.
Green's August and August and September 2013 reprimands the

basis

of both

the

discrimination and

form

retaliation claims."

(Def. 's Resp. 6) . 3
Although the claims do not arise out of identical facts,

it

is still easily conceivable that certain facts might be involved
in

defending

both

claims.

VUU

alleges,

as

an

affirmative

defense, that Hinton's "remaining Title VII claim in Count [Two]
is

not

actionable

because

the

3

University's

treatment

of

Because the same set of facts and related legal principles
govern the adjudicated claims Hinton seeks immediate entry of a
final judgment on (Count One's discrimination in the form of the
August and September reprimands) and an adjudicated claim on
which Hinton does not seek immediate entry of a final judgment
(Count Two's retaliation in the form of the August and September
reprimands), this analysis is still relevant under the third
factor, which is discussed below.
7

Plaintiff

was

based

retaliatory,
Docket

and

No.

12,

only

upon

reasonable,

non-pre-textual

8) .

These

legitimate,
(Def.' s

factors."

"legitimate

factors"

might

non-

Answer,
plausibly

rebut a prima facie claim of discrimination in the adjudicated
Count

One

and

unadjudicated
Corp.

v.

Hazen

Paper

the

prima

portions

Green,

facie
Count

of

claim
Two.

411

U.S.

v.

Biggins,

Co.

792,

retaliation

~,

(1973)

807

507

of

U.S.

McDonnell

in

the

Douglas

holding modified by

604

(1993)

(discussing

framework by which defendant may rebut a plaintiff's prima facie
case

of

discrimination

by

adverse action);

Foster v.

243

2015)

(4th

Cir.

applicablity

to

showing
Univ.

of Maryland-£.

(noting

retaliation

non-pretextual

McDonnell

claims).

Shore,

Douglas

Because

reason

a

for

787 F.3d

framework's
single

legal

defense developed over the course of discovery might dispose of
the unadjudicated portions of Count Two, and also rebut Hinton's
prima

facie

case

conceivable

on

factual

the

adjudicated

and

legal

is only "conceivable," it does not
Hinton's

does

request

marginally

for

indicate

entry

of

that

inappropriate.

8

One,

relationship

adjudicated and unadj udicated claims.

of

Count

there

is

between

a
the

Because this relationship

forcefully counsel
final

entry

judgment.
of

final

in favor

However,

it

judgment

is

2. Possibility that the Need for Review Might or Might
not be Mooted by Future Developments in the District
Court

The possibility that the need for review might or might not
be mooted by future developments in the district court strongly
counsels against entry of final judgment.
Hinton argues that no factual discovery could make moot the
purely legal issue of whether Title VII protects against sexual
orientation
however,
grant

that

partial

Hinton

failed

employment
future

Hinton
final
to

has

state

action.

reason

an

(Pl.'s
in

for

Mem.

suggested that

judgment on its

developments

legitimate

(Pl.'s

discrimination.

this

both

the

(1)

the Court

an

15-17).

Court

This

alternative

allege

Mem.

7).

neglects,

should also

holding:

adequately
As

August

"adversen

discussed

might

unearth
and

that

a

above,
single

September 2 013

reprimands at the heart of the adjudicated Count One and (2) the
denial of class-taking privileges
of Count Two.

(See also

Def.' s

in

the unadjudicated portion

Answer

8)

(stating affirmative

defense of non-pretextual reasons for unadjudicated portions of
Count Two).
VUU
further

raises an alternate,
developments

statutory

damages

might

and more persuasive,

moot

limitations.

the

dispute

(Def.' s

9

Resp.

over

reason that
Count

6-8) .

As

One:

vuu

explains,

4

compensatory and punitive damages in Title VII cases

are capped based on the size of the employer,

and the statutory

cap

(Def.'s

applies

per

lawsuit,

(relying on 42 U.S.C.
976 F. Supp. 383,
$200,000.00

on

§

not

per

claim.

1981a(b); Hall v.

6)

Stormont Trice Corp.,

386 (E.D. Va. 1997)). If a jury awarded Hinton
the

remaining

portions

of

statutory maximum for an employer of VUU' s
7),

Resp.

Count

then dismissal of Count One would be moot,

(the

(Def.' s

size)

Two

Resp.

because Hinton

would be barred from additional recovery on that count. 5
3.
Possibility that the Reviewing Court Might
Obliged to Consider the Same Issue a Second Time

be

The possibility that the Fourth Circuit might be obliged to
consider

the

same

issue

a

second

time

weighs

against

partial

entry of final judgment.
The Court's

alternate

holding

in Count

One dismissed the

count for the same reason that it dismissed part of Count Two:
the

August

and

September

"adverse

employment

behavior

required to

reprimands

action"
give

"materially adverse action"

(the

rise to a

qualified

standard

of

as

neither

employer

bad

discrimination claim)

nor

(the lower standard of employer bad

4

And as Hinton does not contest in his Reply.
VUU makes another argument rooted in the notion that factual
discovery on Count Two relating to the collateral consequences
of Hinton's August and September reprimands might moot Count One
(Def.'s Resp. 7-8), but again, this neglects that the Court
dismissed the portions of Count Two rooted in the August and
September reprimands.
5

10

behavior required to give rise to a retaliation claim) .
Resp.

4-6).

(Def.' s

Hinton argues that it would be appropriate to enter

final judgment in a way which permits the Fourth Circuit to also
review the Court's ruling on pleading standards and the nature
of

"adverse

Court

employment

enters

final

actions."

judgment

(Pl.'s

on

the

Mem.

If

the

standards

and

16-17).

pleading

"adverse employment action" portion of its Count One ruling now
-

as Hinton realizes the Court must,

or Hinton's appeal on the

sexual orientation portion of the Court's
moot

(Pl.' s

face

the

Mem.

15)

question

reprimands,

as

-

of

then

the

whether

alleged,

pled

the

dismissal

of

Hinton pled a

remainder
the

of

the
a

portions

the
of

ruling would be

Fourth Circuit
August

and

sufficiently

employment action" to sustain Count One.
appealed

One

case,

Count

would

shortly

September
severe

2013

"adverse

If Hinton subsequently
including

the

Court's

dealing

with

whether

Two

sufficiently severe "materially adverse action,"

then the Fourth Circuit would face a nearly identical issue. As
the

Court

action"
there

is
is

standards.

noted
a

in

lower

its

standard

significant
(12 (b) (6)

Opinion,

Mero.

than

although

"adverse employment

potential
Op.

46).

6

"materially

for
6

overlap

adverse
action,"

between

This means that

the

the

Fourth

In fact, if the Fourth Circuit disagrees with the Court's
analysis that discrimination and retaliation require different
standards of employer bad action (adverse employment action in
the discrimination context, materially adverse action in the
11

Circuit would be obliged to consider an issue with factual and
substantial legal overlap twice:
and

September

2013

reprimands

employment action upon partial
and

the

issue

reprimands

as

of

pled

the issue of whether the August

whether

as

pled

constituted

entry of final
the

constituted

August

judgment

and

materially

adverse
(soon),

September

adverse

2013

action

upon

the completion of the case.

4. The Presence or Absence of a Claim or Counterclaim
which Could Result in a Set-Off Against the Judgment
Sought to be Made Final
The presence of a

statutory limitation which could result

affect the size of the judgment weighs against partial entry of
final judgment.
Neither party addresses
noted

above,

might

recover

rendering

the

statutory

everything

review of

this
cap

he

factor
on

is

directly.

damages

entitled

(and potential

means
to

However,
that

on

reinstatement

Hinton

Count

of)

as

Two,

Count One

moot.

5. Miscellaneous Factors Such as Delay, Economic and
Solvency Considerations, Shortening the Time of Trial,
Frivolity of Competing Claims, Expense, and the Like
Hinton
category:

argues
(1)

that

several
the

factors

dispositive

in

issue

the
of

miscellaneous

"whether,

in

the

retaliation context), then the Fourth Circuit would face exactly
the same legal and factual issue
whether the August and
September 2013 reprimands constituted adverse employment action
- twice.
12

wake

of

Baldwin

discrimination
circuit,"

()

conserve

Foxx,
is

a

other

Title

covers

of

first

clarifying

this

sexual

will

and,

(Pl. Is

resources."

orientation

impression

issue

litigation

similar

judicial

VII

matter

~whether

and

and

this

v.

in

this

streamline

in

turn,
8-9) .

Mem.

will
The

miscellaneous provisions do not alter the conclusion that entry
of partial summary judgment is inappropriate.
i.

On
position

the

There Is No Matter Of First Impression

first

that

the

point,
Court

Hinton

attempts

explicitly

rejected

Memorandum Opinion

and need not

here: Wrightson v.

Pizza Hut of America,

(4th Cir.

1996)

to

reiterate

in

8-15).

its

a

12(b) (6)

in extensive detail

Inc.,

99 F.3d 138, 143

creates a binding rule that Title VII does not

cover discrimination based on sexual orientation.
Op.

relitigate

(12(b) (6) Mem.

Although that part of Wrightson began as dicta,

it

has subsequently been incorporated in a substantive manner into
the

holdings

Circuit,

of

several

including

(relying on,

.~. . :..51. .:.J

in

district

this

district.

3:12CV600, 2013 WL 1352158,

The

decision

court

precedent

within

(12(b) (6)

the

Mem.

Fourth
Op.

Henderson v. Labor Finders of Virginia,

No.

of

courts

the

Fourth

following

at *4

Circuit

Wrightson

(E.D.

in

Va. Apr.

Wrightson

means

that

Inc.,

2, 2013)).

and
the

10)

district
matter

of

Title VII sexual orientation discrimination is not a matter of
first impression in either the Fourth Circuit or this district.
13

Nor
EEOC

does

DOC

the

0120133080,

transform

the

(12 (b) (6)

Mem.

Circuit

release
2015

question
Op.

Murray v.

N.

(4th Cir.

2015)

the

Carolina

the

WL

4397641,

into

11-15).

reiterated

of

a

at

matter

in

Baldwin

*l

(July 16,

of

first

Aside from the fact

Wrightson
Dep' t

of

(unpublished),

Opportunity Commission

opinion

rule
Pub.

after

Safety,

11)

(relying on,

14-2270-CV,
Crump v.

2016

TCoombs

WL

in

the

12 (b) ( 6)

2015))

impression.

Foxx
611

was

issued,

App' x

F.

166

opinions of the Equal Employment

("EEOC")

are entitled to deference only

~,

Vill.

611877,

at

& Associates,

WL 5601885, at &24 n.12

Foxx,

that the Fourth

to the extent that they have power to persuade.
Op.

v.

Freeport v.

Of

*11
LLC,

(12 (b) (6)

(2d
No.

Cir.

Barrella,

Feb.

Civ.A.

Mem.

16,

No.

2016);

2: 13CV707,

2015

(E.D. Va. Sept. 22, 2015)). As explained

Memorandum Opinion,

Baldwin

v.

Foxx

does

not

persuade. 7

ii.

Streamlining Litigation

Hinton argues that "streamlining" the case by resolving an
appeal
judgment

on

sexual

because

orientation
it

will:

(i)

favors

entry

eliminate

7

of

partial

final

uncertainty about

the

Hinton also neglects the equally-persuasive power of several
circuit courts of appeals other than the Fourth Circuit which
have, contrary to Foxx, incorporated Wrightson into substantive
holdings. ~, Medina v. Income Support Div., New Mexico, 413
1131, 1135 (10th Cir. 2005); Simonton v. Runyon, 232 F.3d 33, 36
(2d Cir. 2000).
14

amount

of

damages

in

this

case;

and

(2)

eliminate

waste

of

judicial resources across the Fourth Circuit.
As
Police

to

the

Dep't,

first,
201

Hinton

F.3d

526,

proposition

that

granting

appropriate

where

an appeal

size

and

damages.

(Pl.'s

cites
532

Mem.

Fox

(4th

partial
with

to

v.

Cir.

final

settle

11-12).

Baltimore
2000)

for

judgment

issues
There

no

the

may

of both

is

City

be

class

predicate

question of class certification in this case. As for damages, as
VUU argues and Hinton does not rebut, damages in this case as a
whole are capped by statute at $200,000.00.
(relying on 42 U.S.C.
Accordingly,
narrow

damages

band,

insufficiently

such

§

are
that

pressing

1981a(b);

Hall,

already

(Def.'s Resp.

976 F.

capped

within

the

issue

of

to

merit

entry

Supp.
a

clarifying
of

6-7)

at 386).

relatively 8
damages

partial

is

final

judgment.
Hinton also argues that the question of whether Title VII
protects against sexual orientation discrimination is likely to
recur, and that accelerating his case to the Fourth Circuit will
provide needed guidance to district courts.

( l?l. 's Mem.

11-14) .

The Court does not disagree that this issue is likely to recur;
indeed,
question

8

the Court's 12 (b) (6)
had

come

before

Memorandum Opinion noted that the

several

For federal litigation.
15

courts

within months

of the

EEOC's decision in Foxx.
that

a

question

will

(12(b)(6) Mem. Op. 11-13). 9 But the fact

recur,

without more,

is not a

reason

to

deviate from the standard practice of appealing once a case is
completely concluded.

C.

Effect of the Court's Alternative Holding
As noted,

One,

the Court entered an alternative holding on Count

dismissing it on grounds that Hinton

plead

a

sufficiently

claim

for

Title

Hinton claims

VII

that

"adverse"

employment

discrimination.

the

alternative

urgent to enter a partial final

failed to adequately
action

(12 (b) (6)

to

Mem.

holding makes

it

state
Op.

a

15).

even more

judgment because Hinton cannot

seek leave to amend to correct his pleading def iciencies 10 when

9

Hinton noted two pieces of pending Title VII sexual orientation
litigation which might be resolved more speedily by Fourth
Circuit intervention.
The first, EEOC v. Pallet Companies d/b/a IFCO Systems NA,
Inc., Case No. 1:16-CV-00595 (D. Md.), settled out of court without the benefit of a Fourth Circuit ruling - after Hinton
filed his memorandum.
"IFCO Systems Will
Pay $202,200 In
Landmark Settlement Of One Of EEOC' s First Sexual Orientation
Discrimination
Lawsuits,"
EEOC
(Jun.
28,
2015)
https://www.eeoc.gov/eeoc/newsroom/release/6-28-16.cfm.
If
anything, Pallet Companies suggests that appellate review is not
necessary to streamline litigation.
The second case, EEOC v. Scott Medical Health Center, Case
No. 2: 16cv225 (W. D. Pa. ) , is outside the geographical scope of
the Fourth Circuit, and would not be bound by a Fourth Circuit
ruling.
10

Presumably under Fed. R. Civ. P. 15(a) (2) (outside 21 days from
plaintiff's
filing
or
from defendant's
filing
of certain
motions, "a party may amend its pleading only with the opposing
party's written consent or the court's leave. The court should
16

the

Court's

ruling

on

sexual

or ienta ti on

discrimination

under

Title VII would make such amendment futile.
If amendment

were

a

simple matter of

pleading collateral

consequences by way of additional factual allegations, as Hinton
suggests in this memorandum (Pl.'s Mem.

15},

filed such pleadings under Fed. R. Civ.

P.

filed

its

sought

Fed.

such

R.

leave

Civ.
to

P.

12 (b) (6)

replead,

and

Hinton should have

15(a) (1) (B) when VUU

motion.
it

is

Hinton

not

has

clear

never

from

the

record before the Court that the "interests of justice," Fed. R.
Civ. P. 15(a) (2) would require permitting such an amendment even
if Hinton had pled discrimination on the basis of membership in
a

clearly protected class.

alternative

holding

The Court cannot

makes

orientation discrimination

appellate
under

conclude that

resolution

Title VII

of

any more

the

sexual

urgent

in

this case.
On

the

whole,

Hinton

seems

to

miss

that

the

Court's

alternative holdings found two independently fatal flaws in his
pleadings. Because a potentially favorable Fourth Circuit ruling
on

the

bring

sexual
Hinton's

alternative

orientation
claim

holdings

discrimination

back
make

to
a

life,

grant

of

the

question

would

existence

partial

final

of

not
the

judgment

substantially less appropriate, not more appropriate.

freely give leave when justice so requires.H),
not specified in Hinton's memorandum.
17

although this is

All

relevant

factors

concerning

"just

reason

for

delay"

counsel against granting entry of partial final judgment.

III. CERTIFICATION OF AN INTERLOCUTORY APPEAL UNDER § 28 U.S.C.

1292(B) IS INAPPROPRIATE

Certification

of

an

interlocutory

appeal

is

likewise

inappropriate.
A.

Legal Standard

A

district

immediate

court

may

interlocutory

certify

appeal

when

one

of

the

its

court

orders

finds

for

that

its

order "involves a controlling question of law as to which there
is

substantial

immediate
ultimate
The

ground

appeal

from

termination

statute

is

for

difference

the

of

order

the

typically

of

may

opinion

materially

1 i tiga ti on."
read

as

and

advance

2 8 U.S. C.

having

three

that

§

an
the

12 92 (b) .

independent

components, each of which must be present for certification:
a

controlling

substantial
immediate
ultimate

question

ground
appeal

of

law,

(2)

as

to

which

for difference of opinion,
form

the

termination of

order

the

may

and

materially

litigation.

In

re

there
(3)

is

that

advance

(1)
a
an
the

Microsoft Corp.

Antitrust Litig., 274 F. Supp. 2d 741 (D. Md. 2003}; Michelin N.
Am.,

Inc.

1067-HMH,

v.

Inter City Tire

2013 WL 5946109

requirements

of

section

&

Auto Ctr.,

(D.S.C.
1292(b)
18

Nov.
are

6,

Inc.,
2013}.

satisfied,

No.

CA 6: 13-

"Even if the
the

district

court

has

'unfettered

interlocutory appeal

discretion'

if

to

exceptional

decline

to

certify

circumstances

are

an

absent."

United States ex rel. Howard v. Harper Constr. Co., No. 7:12-CV215-BO, 2015 WL 9463103, at *1 (E.D.N.C. Dec. 28, 2015).
VUU

cites

several

for,

the

against,

propositions

notion

settled

and

provide

cases

appeals

"should be used sparingly" and that

"must be strictly construed," Myles v.
127

(4th Cir. 1989),

Hinton

that

does

not

interlocutory

their requirements

Laffitte,

881

F.2d 125,

that interlocutory appeals are an exception

to the general rule limiting appeals to final,

id.;

U.S.

Airways,

(E.D.

that

interlocutory appeals should only be used in "exceptional

Inc.,

404

Supp.

F.

circumstances," Cooke-Bates v.
WL

4789838,

at

*2

interlocutory appeals

(E. D.

are

2d 907,

908

Bayer Corp.,
Va.

No.

reserved

for

No.

16,

DiFelice v.
Va.

2005};

3:10cv261,

2010) i

and

2010
that

"pivotal and debatable"

orders, id.
B.

Application
1. A Controlling Question of Law

Hinton initially acknowledges that a

"controlling question

of law" is "a narrow question of pure law whose resolution will
be

completely dispositive

of

the

(relying on Fannin v. CSX Transp.,

litigation."

(Pl.'s

Inc.,

No.

2:12-CV-00363,
19

18)

Inc., 873 F.2d 1438 (4th Cir.

1989)). Hinton later backtracks and cites LaFleur v.
Stores,

Mem.

2014

WL 2121721,

Dollar Tree
at

*2

(E.D.

Va. May 20, 2014) for the proposition that "an issue need not be
dispositive"
statute,
would

to

be

"controlling"

within

the

merely that "the resolution of

language

[a question]

of

the

on appeal

'materially affect the outcome of the litigation."

(Pl.'s

Mem. 19). Although this question is certainly one of "pure law,"
it

will

neither

"materially

the

affect

outcome

of

the

litigation" nor be dispositive.
The

legal

orientation

issue

will

not

of

Title

VII's

"materially

affect

litigation" and is not dispositive.
legal hurdle:

(12 (b) (6)

Hinton's own admission,

Mem.

outcome

sexual
of

the

First, there is an alternate

Op.

could

15). Second,

there is,

an additional factual hurdle:

"cure supposed pleading defects."
Circuit

the

for

Hinton's failure to plead an actionably "adverse"

employment action.

Fourth

protection

find

(Pl.' s

favorably

for

Mem.

16) .

Hinton

by

a need to

Because the

on

the

legal

matter of Title VII's protection for sexual orientation without
having the slightest impact on Hinton's ability to revive Count
One, certification is inappropriate.
2. A Substantial Ground for difference of Opinion

When contemplating certification,
An issue presents a substantial ground for
difference of opinion if courts, as opposed
to
parties,
disagree
on
a
controlling
question of law
As this Court has
explained, when 1~ comes to certifying an
issue for interlocutory appeal, "it matters
not whether the lower court simply got the
20

law wrong ... What matters is whether courts
themselves disagree as to what the law is."
... But just any simple disagreement between
courts
will
not
merit
certification.
A
ground for dispute is "substantial" where,
for example,
the controlling circuit has
made no comment on conflicting opinions
among the various circuits . . . or where the
dispute raises a novel and difficult issue
of first impression.
Cooke-Bates v. Bayer Corp., No. 3:10BCVB261, 2010 WL 4789838, at
*2 (E.D. Va. Nov. 16, 2010)
non-binding
different

precedent

in

(internal citations omitted).
other

jurisdictions

may

"That

counsel

a

result does not constitute substantial grounds for a

difference of opinion." United States ex rel.

Howard v.

Harper

Constr.

9463103,

at

Co.,

No.

7:12-CV-215-BO,

2015

WL

*2

(E.D.N.C. Dec. 28, 2015).
In

this

case,

as

discussed

briefly
more

discussed

fully

in

the

previously
12(b) (6)

in

this

opinion

and

Memorandum

Opinion,

a significant body of decisional law within the Fourth

Circuit compels the conclusion that Title VII does not encompass
sexual

orientation

discrimination.

The

Fourth

Circuit

has

commented on the matter, there are no conflicting opinions among
the

various

circuit

question

of

first

district

courts

courts of appeals,
impression.

outside

the

The
Fourth

and there

fact

that

Circuit

is

a
have

no novel

handful

of

concluded

otherwise in the wake of Foxx (12(b) (6) Mem. Op. 12-14) does not

21

mean

that

there

is

~a

substantial

ground

for

difference

of

opinion" within the Fourth Circuit.
3 . Whether An Immediate Appeal from the Order may
Materially Advance the Ultimate Termination of the
Litigation

Hinton
possibility

argues

that

of

separate

two

certification
trials

(i.e.,

two

distinct sets of district court proceedings:
and one after appeal)."

~eliminate

will

separate

the
and

one before appeal

(Pl.'s Mem. 24). Aside from being over-

optimistic on Hinton's part, this characterization neglects that
every trial court takes this risk with every decision.
routine risk,
rule
case.

that

It is a

and one contemplated and accepted by the general

appeals

should

be

taken

after

the

conclusion

The possibility of averting two trials does not,

in

a

in this

case, counsel extraordinarily for certification.
In

conclusion,

this

question

is

not

suitable

for

certification.

IV.

A STAY IS INAPPROPRIATE
Because there are no grounds for entry of partial final

judgment or for certification of an interlocutory appeal, it is
inappropriate to enter a stay in this case.

22

V.

CONCLUSION

For the reasons stated below,
OF JUDGMENT UNDER RULE
INTERLOCUTORY

APPEAL

54 (b}

UNDER

OR,
28

Plaintiff's MOTION FOR ENTRY
ALTERNATIVELY,

U.S.C.

§

1292(b)

TO CERTIFY AN
AND

TO

PROCEEDINGS (Docket No. 15) will be denied.

It is so ORDERED.

Isl
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: July
2016

J..!t,

23

STAY