Spencer v. Virginia State University, et al

Filing 43

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 11/23/2016. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ZOE SPENCER,
Plaintiff,

v.
VIRGINIA STATE UNIVERSITY,
et al.,
Defendants.

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Civil Action No. 3:16cv331-HEH

MEMORANDUM OPINION
(Denying Plaintiff's Motion to Strike)
THIS MATTER is before the Court on Plaintiff Zoe Spencer's ("Plaintifr')
Motion to Strike (ECF No. 38) and her Memorandum in Support thereof (ECF No. 39),
both filed on November 11, 2016.
Plaintiff asks the Court to strike the Defendants' Reply in Support of their Motion
to Dismiss (ECF No. 36) in its entirety. Plaintiff makes three arguments in support of her
Motion: (1) that the Reply Brief was filed beyond the applicable deadline; (2) that the
Reply Brief impermissibly cited and relied upon a non-integral document; and (3) that the
Reply Brief impermissibly raised new arguments. (See generally Mem. in Supp. of Mot.
to Strike.)
Likely recognizing that her first argument was based on a misunderstanding of
Federal Rule of Civil Procedure 6(d), 1 Plaintiff withdrew it on November 16, 2016.

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Plaintiff electronically filed her Response in Opposition to the Motion to Dismiss on October 31, 2016.
(ECF No. 34.) Local Civil Rule 7(F)(l) provides that the moving party has three days after the filing of

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(ECF No. 41.) However, Plaintiff continues to maintain that the Court should strike the
Defendants' Reply Brief in its entirety based on either her second or third argument.
Both parties have filed memoranda supporting their respective positions. The
Court will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court, and oral argument would not aid
in the decisional process. E.D. Va. Local Civ. R. 7(J).
For the reasons stated herein, the Court finds Plaintiffs second and third
arguments as devoid of merit as her first. Therefore, the Court will deny Plaintiffs
Motion to Strike.

I.

BRIEF BACKGROUND

In her Second Amended Complaint ("S.A.C. "), Plaintiff alleges "that she was
subjected to, and continues to be subjected to, willful and knowing gender discrimination
and retaliation in violation of' Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. ("Title VII"), and the Equal Pay Act, 29 U.S.C. § 206(d), et seq. ("EPA").
Plaintiffs claims themselves are not relevant to the present Motion. Rather, the Court
will focus its attention on the extent to which Plaintiff referenced and relied upon the
Virginia State University Faculty Handbook ("VSU Faculty Handbook") in her S.A.C.
and in her Response to the Defendants' Motion to Dismiss.
Plaintiff begins her factual allegations in her S.A.C. by stating that "[a]ccording to

responsive pleadings to file a reply brief. E.D. Va. Local Civ. R. 7(F)(l). Federal Rule of Civil Procedure
6(d) allows for an additional three days ifthe responsive pleadings were filed electronically, as they were
in this case. Fed. R. Civ. P. 6(d). Therefore, the Defendants had six days, or until November 6, 2016, to
file their Reply Brief. However, since November 6, 2016, was a Sunday, the Reply Brief was not due
until November 7, 2016, the date that it was filed. Fed. R. Civ. P. 6(a)(l)(C).

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the VSU Faculty Handbook ... faculty salaries are set by the VSU Board of Visitors."
(S.A.C., 31.) Plaintiff contends that "[Virginia State University] is a teaching university
and has a standard employee work profile ("EWP") for all employees classified as
Collegiate/Instructional faculty. This EWP does not differ depending on department or
discipline, but is consistent for all faculty of the same category." (Id. , 35.)
Plaintiff continues by citing the VSU Faculty Handbook to support her assertion
that "employees are divided into Classified Personnel and General Faculty. Any type of
faculty (Assistant Professor, Associate Professor or Professor) is considered General
Faculty .... After faculty have been categorized, their salary is based on their rank and
experience as opposed to their department." (Id., 36.) Plaintiff then quotes the VSU
Faculty Handbook to support her characterization that there is no distinction in faculty
responsibilities or job descriptions between departments or disciplines at Virginia State
University: "Faculty salaries shall be reviewed annually and shall be based upon rank and
experience." (Id., 37.) Significantly, Plaintiff did not include a copy of the VSU
Faculty Handbook as an exhibit with her S.A.C.
In their Motion to Dismiss, the Defendants argued that Plaintiff failed to allege
sufficient facts to show that she performed the same job functions as the six male faculty
members from other departments that she named in her S.A.C. In her Response, Plaintiff
again cited to the VSU Faculty Handbook and the EWP to support her claim that "there is
no difference or distinction in faculty responsibilities or job descriptions between
departments or disciplines." (Resp. in Opp. to Mot. to Dismiss 2, 4, 13-14, 16-17.)
Once more, Plaintiff failed to include a copy of the VSU Faculty Handbook as an exhibit
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to her brief.
As a result, the Defendants included a copy of the document; in its entirety, with
their Reply Brief. (Reply Br. 36-1.) Plaintiff now objects to the Defendants' filing of the
document and their arguments regarding it. Consequently, Plaintiff asks this Court to
take the extraordinary step of striking the entire Reply Brief from the record.

II.

STANDARD OF REVIEW

Under Rule 12(f), a district court may "strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P.
12(f). A court's decision on such a motion is discretionary. Renaissance Greeting
Cards, Inc. v. Dollar Tree Stores, Inc., 227 F. App'x 239, 246 (4th Cir. 2007). However,
"Rule 12(±) motions are generally viewed with disfavor 'because striking a portion of a
pleading is a drastic remedy and because it is often sought by the movant simply as a
dilatory tactic."' Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001)
(quoting SA A. Charles Alan Wright et al., Federal Practice & Procedure§ 1380, 647
(2d ed. 1990)). Stated succinctly, "[s]uch motions are what give 'motions practice' a
deservedly bad name." Davis v. Ruby Foods, Inc., 269 F.3d 818, 821 (7th Cir. 2001)
(Posner, J. ).

III.

ANALYSIS

As an initial matter, the Court finds it necessary to discuss why Plaintiff's
references to and quotations from the VSU Faculty Handbook are significant in framing
her S.A.C.
To establish a plausible claim of wage discrimination, the Fourth Circuit has held
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that a plaintiff"bears the burden of showing that she (1) receives lower pay than a male
co-employee (2) for performing work substantially equal in skill, effort and responsibility
under similar working conditions." Strag v. Bd. of Trustees, Craven Comm. College, 55
F.3d 943, 948 (4th Cir. 1995); see also Williams v. Cerberonics, Inc., 871F.2d452, 455
(4th Cir. 1989) (indicating that the sex discrimination provisions of Title VII and the EPA
are construed harmoniously). This disparity is typically shown by comparison to a
specific male comparator. Houck v. Virginia Polytechnic Inst. and State Univ., IO F .3d
204, 206 (4th Cir. 1993).
A proper comparator performs "substantially equal" work as the plaintiff.
Wheatley v. Wicomico County, 390 F.3d 328, 332 (4th Cir. 2004). This requires more

than a mere showing that the plaintiff and the putative comparator share the same job
title. Id. The analysis turns on whether the jobs to be compared share a "common core"
of tasks. Hassman v. Valley Motors, Inc., 790 F. Supp. 564, 567 (D. Md. 1992) (cited for
this proposition with approval in Dibble v. Regents of Univ. ofMaryland System, 89 F .3 d
828 (Table) (4th Cir. 1996) (unpublished opinion)).
In this case, Plaintiff has cited to and quoted from the VSU Faculty Handbook to
support her assertion that the six named male professors in her S.A.C. are appropriate
comparators because all faculty members at Virginia State University "perform[] work
substantially equal in skill, effort and responsibility under similar working conditions."
Strag, 55 F .3d at 948.

With this understanding of the case, the Court will now address Plaintiffs second
and third arguments from her Motion to Strike.
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A.

Plaintiff's Second Argument

In her second argument, Plaintiff contends that the Court should strike the
Defendants' Reply Brief because "it inappropriately relies on documents outside [of] the
pleadings." (Mem. in Supp. Mot. to Strike 6.) Plaintiff alleges that the Court should not
consider the copy of the VSU Faculty Handbook because: (1) it is not "integral" to
Plaintiff's claims; (2) the Defendants included it as an exhibit to their Reply Brief rather
than to their Motion to Dismiss; and (3) the Defendants provided "no evidentiary basis
for concluding that it is an authentic copy" of the VSU Faculty Handbook. (Mot. to
Strike 7.)
"Ordinarily, a court may not consider any documents that are outside of the
complaint, or not expressly incorporated therein, on a motion to dismiss." Clatterbuck v.
City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). However, the Court may

consider documents "attached or incorporated into the complaint"-as well as those
attached to a motion to dismiss-so long as they are "integral to the complaint and
authentic." Philips v. Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiff argues that the VSU Faculty Handbook is not "integral" to the S.A.C. and,
therefore, may not be considered at this stage of litigation.
In support of this assertion, Plaintiff cites several district court cases that discuss
the appropriate standard to determine integrality. In Walker v. S. W.LF. T. SCRL, the court
held that, to be "integral," a document must be one that by "its very existence, and not the
mere information it contains, gives rise to the legal rights asserted." Walker v. S. WLF. T.
SCRL, 517 F. Supp. 2d 801, 806 (E.D. Va. 2007). And in Fisher v. Maryland
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Department ofPublic Safety and Correctional Services, the district court observed in an
unpublished opinion that "courts have found integral the allegedly fraudulent document
in a fraud action, the allegedly libelous magazine article in a libel action, and the
documents that constitute the core of the parties' contractual relationship in a breach of
contract dispute." Fisher v. Md. Dep't ofPub. Safety & Corr. Servs., Civil No. 10-CV0206, 2010 WL 2732334, at *2 (D. Md. July 8, 2010) (internal quotation marks omitted).
Though these opinions are helpful in framing the Court's discussion, the Court
finds the analysis in American Chiropractic v. Trigon Healthcare, 367 F.3d 212 (4th Cir.
2012), to be both persuasive and readily applicable to the present issue. In that case, the
Fourth Circuit upheld the lower court's decision to refer to an Ancillary Professional
Provider Agreement attached by the defendant to its Motion to Dismiss because the
plaintiff "explicitly referred to [it], and its mail and wire fraud claims [were] based on the
alleged misrepresentation made in that document." Id. at 234. Citing to a Third Circuit
decision, the Court explained the rationale underlying the exception to the rule that courts
ought not consider documents outside of the pleadings at the 12(b)(6) stage:
The primary problem raised by looking to documents outside the
complaint-lack of notice to the plaintiff-is dissipated "[w ]here plaintiff
has actual notice ... and has relied upon these documents in framing the
complaint." What the rule seeks to prevent is the situation in which a
plaintiff is able to maintain a claim ... by extracting an isolated statement
from a document and placing it in the complaint, even though if the
statement were examined in the full context of the document, it would be
clear that the statement [did not support the claim].

Id. (quoting In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d
Cir. 1997)).

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In the present case, though the VSU Faculty Handbook does not give rise to the.
claim itself, Plaintiff cites to and relies on it to frame her central contention that "there is
no difference or distinction in faculty responsibilities or job descriptions between
departments or disciplines." (Resp. in Opp. to Mot. to Dismiss 2.) As discussed above,
this assertion is highly relevant to the Court's inquiry in determining whether she has
properly identified comparators "who perform work substantially equal in skill, effort and
·responsibility under similar working conditions," which is critical in pleading a plausible
case of wage discrimination. Strag, 55 F.3d at 948; see also Cerberonics, Inc., 871 F.2d
at 455 (indicating that the sex discrimination provisions of Title VII and the EPA are
construed harmoniously). Plaintiff cannot argue now that the inclusion of the VSU
F acuity Handbook in its entirety-as opposed to the brief snippets she included in her
S.A.C. and Response-would prejudice her in any way or that she was without notice of
the documents' existence. Consequently, the Court will dispense with this argument.
Plaintiff next contends that the pleading should be stricken because the Defendants
filed the VSU Faculty Handbook with their Reply Brief as an exhibit rather than with
their Motion to Dismiss. This argument is unsupported by precedent or sound logic. In
fact, as the Defendants noted, one of the cases that Plaintiff cited in her Motion to Strike
directly contradicts this position. In Murphy-Taylor v. Hofmann, the court considered
documents attached for the first time to the defendant's reply. Murphy-Taylor v.
Hofmann, 968 F. Supp. 2d 693, 711 n.17 (D. Md. 2013). While the materials considered
in that case-state statutes, county ordinances, and legislative history documents-were
certainly of a different nature than the VSU Faculty Handbook, Plaintiff cannot allege
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prejudice by the inclusion of a full document that she relies on throughout her S.A.C. and
Response. The Court finds this argument equally as uncompelling as Plaintiffs first.
Finally, Plaintiff contends that the Defendants provided "no evidentiary basis for
concluding that it is an authentic copy" of the VSU Faculty Handbook. This assertion is
a bit disingenuous, as Plaintiff-who clearly has a copy of the VSU Faculty Handbookhas failed to point to a single discrepancy between her copy and the document included
with the Defendants' Reply Brief. Plaintiff cannot, in the same breath, cite to and quote
from the VSU Faculty Handbook in her briefs and claim that a copy provided by the
Defendant should be stricken because it has not been properly authenticated. This
assertion is entirely devoid of merit.
In view of the above, the Court finds Plaintiffs second argument to be baseless
and will decline to grant her Motion to Strike on that ground.

B.

Plaintiff's Third Argument

In Plaintiffs third argument, she alleges that the Reply Brief should be stricken
because the Defendants "have raised ... new arguments relating to the [VSU] Faculty
Handbook knowing that Plaintiff would have no opportunity to respond." (Mot. to Strike
11.)
It bears noting-as the Defendants did in their Response to this Motion-that less
than three pages of the Defendants' eleven-page Reply Brief contains arguments relating
to the VSU Faculty Handbook. (See generally Reply Br. 4-6.) Therefore, it goes
without saying that striking the Defendants' entire Reply Brief due to what is contained
in only three pages of an eleven-page filing would be to effectively throw the baby out
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with the bathwater.
Moreover, a review of the Reply Brief in light of Plaintiff's Response
demonstrates that the Defendants have not made any new arguments. Instead, they
merely continued their argument from their initial Motion to Dismiss that Plaintiff failed
to allege sufficient facts to show the male comparators performed the same job that she
did. Plaintiff cited to and relied upon the VSU Faculty Handbook multiple times in her
Response. Obviously, the Defendants were entitled to the opportunity address those
contentions in their Reply Brief. See Evanston Ins. Co. v. Gayatree, Inc., No. 2: 13cvl34;
No. 2:13cv209 (consolidated), 2013 U.WL 12097454, at *l (E.D. Va. Aug. 19, 2013)
(noting that plaintiff did not raise a "new argument" in its reply brief in support of its
motion to dismiss because it responded to arguments raised by the defendant in its
response brief).
Therefore, the Court concludes that it was Plaintiff, and not the Defendants, who
raised arguments concerning the VSU Faculty Handbook. As such, the Court finds
Plaintiff's third argument to be unmeritorious.

IV.

CONCLUSION

For the preceding reasons, the Court finds that Plaintiff has failed to produce a
sound argument as to why the Defendants' Reply Brief should be stricken from the
record.
Therefore, Plaintiff's Motion to Strike (ECF No. 38) will be DENIED.
The Court will decline to award the Defendants their fees and costs in opposing
this Motion.
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An appropriate Order will accompany this Memorandum Opinion.
The Clerk is DIRECTED to send a copy of this Memorandum Opinion to all
counsel of record.

Isl
Henry E. Hudson
United States District Judge
Date: No11 '23 2•1'1
Richmond, Virgi~ia

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