Spencer v. Virginia State University, et al
Filing
45
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 11/30/2016. (walk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ZOE SPENCER,
Plaintiff,
Civil Action No. 3:16cv331-HEH
V.
VIRGINIA STATE UNIVERSITY,
et al..
Defendants.
MEMORANDUM OPINION
(Granting Defendants' Motion to Dismiss)
PlaintiffZoe Spencer ("Plaintiff') brings suit against her employer, Virginia State
University ("VSU"), along with various members ofthe University's administration and
Board of Visitors (collectively "Defendants"), alleging wage discrimination and
retaliation under the Equal Pay Act of 1963 ("EPA") and Title VII of the Civil Rights Act
of 1964 ("Title VII").
This matter comes before the Court on Defendants' Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 28.) Defendants seek dismissal of
Plaintiffs wage discrimination and retaliation claims, arguing that Plaintiff has failed to
plead a plausible claim under either the EPA or Title VII.
Each side has 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. Loc. Civ. R. 7(J).
For the reasons set forth below, the Court will grant Defendants' Motion, and this
case will be dismissed without prejudice.
I. BACKGROUND
As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court
assumes Plaintiffs well-pleaded allegations to be true and views all facts in the light
most favorable to her. T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385
F.3d 836, 841 (4th Cir. 2004)(citingMylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th
Cir. 1993)). At this stage, the Court's analysis is both informed and constrained by the
four comers ofPlaintiffs Second Amended Complaint ("S.A.C."). Viewed through this
lens, the facts are as follows.
Plaintiff has been employed with VSU since August 2008. (S.A.C. ^ 42, ECF No.
19.) VSU initially hired Plaintiffas an Assistant Professor in the Department of
Sociology, Social Work, and Criminal Justice. {Id.) In 2010, Defendants promoted
Plaintiff to Associate Professor, a position she currently holds. {Id.)
Plaintiffs career at VSU has been noteworthy, and she has received numerous
awards and certificates for her service to the VSU community and the community at
large. {Id.
44.) As an Associate Professor, Plaintiff is responsible for teaching four
classes each semester. {Id. T| 46.) Plaintiffs classes are consistently filled to capacity,
and her evaluations from both students and faculty exceed the 95th percentile. {Id.)
From 2011 until 2013, Plaintiffs salary was $68,500.00 per academic year. {Id. TI47.)
Plaintiff currently receives $70,040.00 per academic year. {Id.)
Plaintiff avers that VSU is a teaching university, not a research institution. {Id. ^
48.) Plaintiffalso contends that the University's Employee Work Profiles ("EWPs") do
not distinguish between the responsibilities and performance obligations of faculty
members according to their disciplines. {Id.)
Plaintiff contends that according to the VSU Faculty Handbook, VSU employees
are divided into Classified Personnel and General Faculty. {Id. H36.) Faculty salaries are
based on rank and experience, rather than department. {Id.) Per the Handbook, "there is
no difference or distinction in faculty responsibilities or job descriptions between
departments or disciplines." {Id. Tf 38.)
Plaintiffs S.A.C. draws comparisons between several VSU faculty members with
different compensation rates than Plaintiff. Specifically, Plaintiff identifies six male
professors at VSU who earn significantly higher salaries than she does despite equal or
less experience and equal or fewer qualifications:
1. Cortez Dial is or was an Associate Professor in the Mass
Communications Department despite the fact that when he was hired he
did not possess a terminal degree in the field and had no experience
teaching the subject, (/c/. 1149a.) In Spring 2015, Professor Dial taught
only two courses, each of which had less than 20% enrollment. {Id.) In
2014, Professor Dial earned $35,406.00 more than Plaintiff. {Id.)
2. Michael Shackleford was an Associate Professor in the Doctoral Studies
Department, despite the fact that when he was hired he had no
experience teaching the subject or conducting research. {Id. T149b.) In
Spring 2015, Professor Shackleford taught two courses with enrollment
maximums of 3 and 8 students respectively. (Jd.) In 2014, Professor
Shackleford earned $49,698.00 more than Plaintiff. {Id.)
3. Andrew Feldstein is an Associate Professor in the Management and
MarketingDepartment. {Id. H49c.) In Spring 2015, he was signed up
to teach only one class. {Id.) In 2014, Professor Feldstein earned
$42,827.00 more than Plaintiff. {Id.)
4. Byron Greenberg was an Associate Professor in the Psychology
Department. {Id. ^ 49d.) In 2014, Professor Greenberg earned
$6,421.00 more than Plaintiff {Id.)
5. David Coss is an Assistant Professor in the Accounting and Finance
Department. {Id. T150a.) Plaintiffavers that, prior to his employment at
VSU, Professor Coss did not have any significant contributions or
achievements in his field outside of academia. {Id.) In Spring 2015,
Professor Coss was signed up to teach two courses, each with less than
40% enrollment. {Id.) In 2014, Professor Coss earned $38,110.00 more
than Plaintiff. {Id.)
6. Karl Menk was an Associate Professor at VSU. (M T150b.) In 2012,
Professor Menk earned $36,500.00 more than Plaintiff {Id.)
In 2012, Plaintiff made attempts to address gender equity at VSU. (Id. H51.)
Plaintiff served as the chair of a six-member organization entitled "The Gender Equity
Task Force," a group designed to investigate wage disparity at VSU. {Id.) The Task
Force presented its findings to the Administrative Cabinet at VSU and warned the
Administration about the University's potential liability under the EPA and Title VII.
{Id.) Defendants did not make any changes to the University's compensation structure.
{Id.)
Following the presentation, VSU Provost Weldon Hill ("Hill") referred to Plaintiff
as a "trouble maker" and initiated a retaliatory campaign against Plaintiff. {Id. H54.) In
December 2012, Hill refused to sign Plaintiffs time sheet. {Id. ^ 55.) Plaintiffrequested
and received assistance from another Board Member who intervened on her behalf {Id.).
Nevertheless, Plaintiffwas paid two pay periods late. {Id.) Then, in June 2013, the VSU
Administration encouraged one of Plaintiffs former students to file a formal complaint
against her with the Office of Civil Rights. {Id. ^ 56.) Defendants declined to represent
Plaintiff in the dispute, which was resolved in Plaintiffs favor. {Id.) In July 2013, Hill
chastised Plaintiff in an email for publicly challenging the University's gender equality
policies. {Id. TI57.) Finally, in January2014, Hill denied Plaintiffthe opportunity to
teach an additional course at Fort Lee. {Id. ^ 58.) Plaintiff challenged the decision, and
Defendants uhimately reinstated the course. {Id.)
Plaintiff requested a salary adjustment in the summer and early fall of 2014 to
equalize her pay in compliance with the EPA and Title VII. {Id. 161.) Plaintiffs
department chair supported this request. {Id.) Nevertheless, Hill denied Plaintiffs
request. {Id.)
On April 13,2015, Plaintiff filed a formal charge of discrimination and retaliation
under Title VII with the Equal Employment Opportunity Commission ("EEOC"). {Id. ^
62.) Shortly afterserving her initial complaint against Defendants, the University's
EEO/Compliance Manager informed Plaintiffthat all future requests for information
would have to go through her attorney. {Id.
64.) In August 2015, Plaintiffreported a
troubled studentfor "stalking"and requested that the VSU Administration address the
situation. {Id. ^ 67.) VSU administrators took no action, and Plaintiffs Departmental
Chair was forced to teach one of Plaintiffs classes. {Id.) Finally, in January 2016,
Defendants removed Plaintiff from her role as Freshman Orientation speaker. {Id. TI68.)
Plaintiffs S.A.C. contains five counts against Defendants. Counts I, III and V
allege thatDefendants violated the EPA and TitleVII by failing to provide Plaintiffwith
equal pay for substantially equal work. Counts II and IV assert that Defendants
unlawfully retaliated against Plaintiff under the EPA and Title VII.
II. STANDARD OF REVIEW
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943,952
(4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require[] only
'a short and plain statement of the claim showingthat the pleader is entitledto relief,' in
order to 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41,47 (1957)). A complaint need not assert "detailed factual
allegations," but must contain "more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Id. at 555 (citations omitted). Thus, the
"[f]actual allegations must be enough to raise a right to reliefabove the speculative
level," to one that is "plausible on its face," ratherthan merely "conceivable." Id. at 555,
570 (citation omitted). In considering such a motion, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. T.G. Slater, 385 F.3d at 841 (citation omitted). Legal conclusions enjoy no
such deference. Ashcroft v. Iqbal, 556 U.S. 662,678 (2009).
Plaintiff relies on Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) for the
proposition thatshe "need not plead a prima facie case of discrimination." (Pi's
Response to Def's Mot. to Dismiss, "Pi's Br." 3, ECF No. 43.) Additionally, Plaintiff
deploys Erickson v. Pardus, 551 U.S. 89, 93 (2007) to suggest that she need not"plead
specific facts" to support her claim of discrimination. Plaintiffs reliance on these two
cases is misplaced.
In Swierkiewicz, the Supreme Court was concerned with federal pleading
standards under the "notice pleading" structure that predated Twombly. The Court in
Twombly explicitly addressed the holding in Swierkiwicz, statingthat "'Swierkiewicz did
not change the law of pleading, but simply re-emphasized ... that the Second Circuit's
use of a heightened pleading standard for Title VII cases was contrary to the Federal
Rules' structure of liberal pleading requirements." Twombly, 550 U.S. at 569. While
Plaintiff need not plead "specific facts establishing a prima facie case of discrimination"
to survive a motion to dismiss, she must plead facts sufficient "to state a claim of relief
that is plausible on its face." Id. at 569-70. This is not a "heightened pleading standard,"
as contemplated by Sweirkiewicz. Rather it is the prevailing standard for pleading
requirements underFederal Rule of Civil Procedure 8(a).
Similarly, Erickson addressed pleading requirements prior to the SupremeCourt's
holding inIqbal, which unambiguously requires a plaintiffto plead her case using
specific factual allegations rather than mere conclusory statements. Iqbal, 556 U.S. at
678-79. Plaintiffs assertion that "there is no requirement to plead specific facts" at the
Rule 12(b)(6) stage does not comport WiXhIqbal's call for "sufficient factual material,
accepted as true, to 'state a claim for relief that is plausible on its face.'" Id. at 678
(quoting Twombly, 550 U.S. at 570); (Pi's Br., 9).
As a result, neither Swierkiewicz nor Erickson alter this Court's analysis at the
Rule 12(b)(6) stage.
III. DISCUSSION
Defendants move to dismiss Plaintiffs wage discrimination claims under the EPA
and Title VII, asserting that Plaintiff has not identified proper comparators as required by
the statutes. Furthermore, Defendants move to dismiss Plaintiffs retaliation claims under
the EPA and Title VII, alleging that Plaintiff suffered no materially adverse employment
action as a result of retaliatory animus. The Court will address each argument in turn.
i. Wage Discrimination under the EPA
In Counts III and V, Plaintiff alleges that Defendants unlawfully and willfully
discriminated against her on the basis of her sex, in violation of the EPA. The EPA
prohibits employers from discriminating on the basis of sex "by paying wages to
employees ... at a rate less than the rate at which he pays wages to employees of the
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opposite sex ... for equal work onjobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar working conditions."
29 U.S.C. § 206(d)(1). The EPA also provides increased civil penalties for incidents of
"willful" or "repeated" violations. 29 U.S.C. § 216(B)(2).
To establish a plausible claim ofwage discrimination under the EPA, the Fourth
Circuit has held that a plaintiff "bears the burden of showingthat 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." Stragv. Bd. ofTrustees, Craven
Comm. College, 55 F.3d 943,948 (4th Cir. 1995). This disparity is typically shown by
comparison to a specific male comparator, which must be pled with specificity. Houckv.
Virginia Polytechnic Inst., 10 F.3d 204,206 (4th Cir. 1993).
A proper comparator for EPA purposes performs work "substantially equal" to
that of the plaintiff. Wheatley v. Wicomoco, 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
"conmion core" of tasks. Hassman v. ValleyMotors, Inc., 790 F.Supp. 564, 567 (D. Md.
1992) (cited for this proposition with approval in Dibble v. Regents ofUniv. ofMaryland
System, 89 F.3d 828 (Table) (4th Cir. 1996) (unpublished opinion)). However, "jobs do
not automatically involve equal effort or responsibility even if they 'entail most ofthe
same routine duties."' Wheatley, 390 F.3d at 333 (quoting Hodgson v. Fairmont Supply
Co., 454 F.2d 490,493 (4th Cir. 1972)). Jobs with a shared common core of tasks may
be considered unequal if the more highly paid job involves additional tasks requiring
extra effort or time or contributes economic value "commensurate with the pay
differential." Hodgson, 454 F.2d at 493 (quotingHodgson v. Brookhaven Gen. Hosp.,
436 F.2d 719, 725 (4th Cir. 1970)).
In this case. Plaintiff has not pled an actionable claim of wage discrimination
under the EPA. The S.A.C. describes in detail Plaintiffs qualifications within the field of
Sociology, Social Work, and Criminal Justice, including Plaintiffs publication history,
scholarly presentations, community service and awards. (S.A.C. ^ 44.) Plaintiffalso
maintains that her responsibilities as an Associate Professor include teaching four classes
each semester. {Id.) Plaintiffthen identifies six faculty members at VSU—four of whom
are Associate Professors—as potential comparators who receive highersalaries than she
does. {Id.
49-50). None ofthese putative comparators are employed within the
Department of Sociology, Social Work, and Criminal Justice. {Id. 149.)
Plaintiffs S.A.C. founders in its failure to identify with any degree of specificity
the analogous "skill, effortand responsibility" inherent in eitherherjob or thejobs of her
putative comparators. Iqbal, 556 U.S. at 678. Although Plaintiffneed not identify
comparators in her own department, as a matter of lawshe must identify "appropriate"
comparators. Strag, 55 F.3d at 950. The Court neednot presume that professors
employed in different departments perform "substantially equal work" for wage
discrimination comparisons under the EPA. See id.; Soble, 778 F.2d at 167.
Additionally, the mere fact that Plaintiff and four of her peers share the title "Associate
Professor," without more, is not sufficient to render them appropriate comparators.
Wheatley, 390 F.3d at 333.
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Thus, Plaintiffmust provide some factual basis to demonstrate that the professors
identified in the S.A.C. are appropriate comparators. She fails to do so. First, Plaintiffs
S.A.C. does not allege with specificity the responsibilities and requirements of her own
position. Though she notes in detail her qualifications and extracurricular activities, she
does not identify which of these, if any, are required and which are voluntary. The only
allegation that directly bears on herjob duties is the assertion that her position mandates
teaching four classes per semester. (S.A.C. TI44.) Moreover, the S.A.C. is devoid of any
information detailing her proposed comparators' job duties, scholarly and research
responsibilities, extracurricular activities, or working conditions.' As aresult, the Court
cannot find that Plaintiff's proposed comparators supply a logical, analytical basis to
support a plausible wage discrimination claim under the EPA. See Noel-Baptiste v.
Virginia State University, No. 3:12cv00826,2013 WL 499342 at *6 (E.D. Va. Feb. 7,
2013) (finding that where the plaintiff "made no reference to the skills, effort, and
responsibilities required of her as an 'Associate Professor' or to those ofthe male
professors who she alleges receive a greater salary
no comparisons of their
respective skills, effort, and responsibilities [could]be made").
In the final analysis. Plaintiff has merely identified male professors in different
departments, teaching different subjects at the University and earning a higher salary.
' Plaintiffattempts to address thisdeficiency by reference to theVSU Faculty Handbook and VSU EWPs, which she
suggests obviate the need to establish comparators with specificity. (S.A.C. ^31,34-38.) Even if FlaintifTs
reading of this document is accurate—^which is in dispute, as demonstrated by Defendants' Reply in Support of this
Motion—this is not the level of factual specificity required to comport with federal pleading standards. Iqbal, 556
U.S. at 678.
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This does not amount to a plausible claim of wage discrimination underthe EPA. As a
result, Counts III and V will be dismissed without prejudice.
ii. Wage Discrimination under Title VII
In Count I, Plaintiff alleges that Defendants unlawfully discriminated against her
with respect to her compensation on the basis of gender in violation of Title VII. Title
VII provides that"[i]t shall be an unlawful employment practice for an employer (1)...
to discriminate against any individual with respect to [her] compensation... because of
such individual's ... sex
" 42 U.S.C. H2000e-2a. As Plaintiff points out,
discrimination claims arising underTitle VII often proceed according to the "burden
shifting" framework established in McDonnell Douglas Corp. v. Green. 411 U.S. 792
(1973). However, the McDonnell Douglas framework "is an evidentiary standard, not a
pleading requirement." Swierkiewicz, 534 U.S. at 997. As such, it does not bear on the
Court's analysis at this stage.
The sex discrimination provisions of Title VII and the EPA are construed in
harmony. Williams v. Cerberonics, Inc., 871 F.2d 452,455 (4th Cir. 1989). Under Title
VII, a plaintiff may establish a wage discrimination claim sufficient for Rule 12(b)(6)
purposes by providing directevidence of intentional discrimination. Brinkley-Obu v.
Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994). In the alternative, a plaintiff
may plead her case circumstantially "by demonstrating that she is female, i.e., a member
of a protected class, and that thejob she occupiedwas similarto higherpayingjobs
occupied by males." Id. (citing Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d
1518, 1526 (11th Cir. 1992)). The Fourth Circuit has suggested that under this
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circumstantial framework "there is a relaxed standard of similarity between male and
female-occupied jobs, but a plaintiff has the [ultimate] burden of proving an intentto
discriminate on the basis of sex." Id. Thus, while the EPA essentially creates "strict
liability" for sex discrimination cases. Title VII requires a showing of some sort of
"discriminatory intent." Hassman, 790 F.Supp. at 569. Plaintiff fails to make this
showing.
Plaintiff relies on the circumstantial argument that she is compensated at a lower
rate than her male peers. As a result. Plaintiffmust plausibly allege that "the job she
occupied was similar to higher paying jobs occupied by males." Brinkley-Obu, 36 F.3d
336. For the reasons stated previously. Plaintiffs S.A.C. lacks appropriate comparators
by whichthe Courtcould deduce that Plaintiffreceived less compensation for
substantially equal work.
Even assuming arguendo that the Fourth Circuit's "relaxed standard of similarity
between male and female-occupied jobs" for Title VII cases is the appropriate standard,
Plaintiff still fails to plead the requisite discriminatory intent. Id. The only allegation in
the S.A.C. bearing on this issue is the allegation that "[djespite being presented with the
[GenderEquity] Task Force findings," Defendants continued to compensate several male
faculty members at a higher rate than Plaintiff and denied Plaintiffs request for a salary
increase. (S.A.C. ^ 53, 61.) This does not amount to discriminatory intent. Compare
Brinkley-Obu, 36 F.3d at 354 (finding indirect evidence of discriminatory intent where
plaintiffs employer compensated a subordinate at a higher rate, reassigned some of
plaintiffs job duties to the subordinate and suggested that plaintiff needed to choose
13
"between having a career andbeing a mama"); with Coleman v. Maryland Courtof
Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (declining to find discriminatory intent in
discriminatory discharge case where plaintiffs complaint merely alleged in conclusory
fashion that whiteemployee was not disciplined for the same improprieties as plaintiff).
At most. Plaintiffalleges that Defendants failed to adopt her recommendations on gender
equity and compensation.
Even when drawing all reasonable inferences in Plaintiffs favor, the Court cannot
find fi-om these facts that Plaintiffs Title VII claim is anything more than speculative.
As a result. Plaintiff has failed to plead a viable claim ofwage discrimination under Title
VII and Count I will be dismissed without prejudice.
iii. Retaliation under the EPA and Title VII
Title VII and the EPA both contain proscriptions against retaliation. To state a
retaliation claim pursuant to either the EPA or Title VII, a plaintiffmust show "(1) that
she engaged in a protected activity; (2) that [the defendant] took adverse employment
actionagainst her; and (3) that a causal connection existed between the protected activity
and the adverse action." Cerberonics, 871 F.2d at 457 (citing Ross v. Communications
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)). A materially adverse employment
action is one that "well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006). The plaintiff must plausibly allege that her employer took
such an action ''because the plaintiff engaged in a protected activity." Dowe v. Total
14
Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (emphasis
in original).
Temporal proximity between the protected activity and the adverse employment
action can give rise to an inference of causation. SeeLettieri v. Equant Inc., 478 F.3d
640, 650 (4th Cir. 2007). The Fourth Circuit has suggested that a two-and-a-half month
gap between theprotected activity and the adverse employment action may be sufficient
to establish causationbased on temporalproximity alone. King v. Rumsfeld, 328 F.3d
145,151 & n.5 (4th Cir. 2003). However, in the absence of close temporal proximity,
other evidence of "retaliatory animus" from the intervening period may be used to prove
causation. Lettieri, 478 F.3d at 650.
Plaintiff has failed to state a plausible claim of retaliation under either the EPA or
Title VII. Plaintiff asserts that in 2012, she served as chair of a "Gender Equity Task
Force," which highlighted VSU's potential liability under the EPA and Title VII wage
discrimination proscriptions. (S.A.C. H51.) Then, in mid-2014. Plaintiffrequested and
was denied a salary increase to equalize her pay in accordance with the EPA and Title
VII. {Id. TI61.) The parties appear to agree that Plaintiffs participation in the Task Force
constituted a protected activity and that the denial of a salary increase constituted an
adverse employment action,^ However, the temporal proximity between the two events is
^In their initial Memorandum, Defendants argued that Plaintiff had not suffered an"adverse
employment action" underTitle VII. (Mem. in Supp. of Defs.' Mot. to Dismiss, ECF No. 29.)
However, in their Reply brief, Defendants state, "The VSU Defendants do not contend that
denial of a pay increase would not constitute an adverseemployment action." (Reply in Supp. of
Defs.' Mot. to Dismiss, 8, ECF No. 36.) Therefore, the Court concludes that Plaintiff has pled
both participation in a protected activity and a materially adverse employment action.
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tenuous. Consequently Plaintiffmust rely on allegations of "retaliatory animus"to prove
a causal connection. Lettieri, 478 F.3d at 650.
Plaintiffalleges five separate instances of retaliatory conduct on the part of VSU
occurring between the Task Force presentation and the denial ofa salary increase^: (1)
VSU Provost Hill referred to Plaintiff as a "trouble maker"; (2) in December 2012, Hill
refused to sign Plaintiffs time sheet until anotherBoard member intervened; (3) in June
2013, VSU Administration encouraged one of Plaintiffs students to file a complaint—
which was ultimately resolved in Plaintiffs favor—against her with the Office of Civil
Rights; (4) in July 2013, Hill chastised Plamtiffvia e-mail for challenging the VSU
Administration's handling of pay discrepancies; and (5) in January 2014, Hill initially
denied Plaintiff the opportunity to teach a class outside the University, although he later
reinstated the course.
None of these incidents, on their own, constitute a "materially adverse
employment action" that "might well have dissuaded a reasonable worker from making
or supporting a charge of discrimination." 548 U.S. at 68. However, the Court may
consider these incidents together in determining whether "retaliatory animus" exists.
^Plaintiffalso relates three other allegedly retaliatory incidents: (1) after Plaintiff filed her initial
Complaint, VSU's EEO/Compliancemanager informed Plaintiff that future requests for
information from the school would need to go through her attorney; (2) in August 2015, Plaintiff
reported a student for stalking and when VSU took no action, Plaintiffs Department Chair
taught one of Plaintiffs classes for safety reasons; and (3) in January 2016, Plaintiff was
removed from her role as Freshman Orientation Speaker. (S.A.C. H64, 67,68.) "[E]vidence of
recurring retaliatory animus during the interveningperiod can be sufficient to satisfy the element
of causation." Lettieri, 478 F.3d at 650 (emphasis added). However, these events occurred after
the filing of Plaintiffs Complaint and, as a result, they do not bear on the court's analysis.
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Lettieri, 478 F.3d at 650. Even in the aggregate, Plaintiffs allegations in this case do not
rise to the level of "retaliatory animus" required to plead a plausible retaliation claim.
In Lettieri, a female employee complained to her human resources department
about gender discrimination on the partof her superiors. 478 F.3d at 650-51. When her
superiors found out about the plaintiffs reports, she was stripped of herjob
responsibilities, divested of control over thesales team, and prohibited from setting prices
and meeting directly with important clients. Id The Fourth Circuit concluded that
"[t]hese intervening events—which occurred regularly after Lettieri's complaint and can
reasonably be viewed as exhibiting retaliatory animus on the part of [defendants]—are
sufficient to show a causal link between Lettieri's complaint and her termination." Id. at
651.
By contrast, in Elder v. DRS Technologies, Inc., the district court denied an
employer's motion to dismiss where an employee of a defense technology company
raised concerns about his employer's fraudulent timekeeping policies and was ultimately
terminated. No. I:13cv799,2013 WL 4538777 (E.D. Va. Aug. 27,2013). In the
intervening period, the plaintiffs employer deployed him to active combat zones in
violation of its own policies and placed him in life-threatening situations. Id. at *7. This
circumstantial evidence raised the inference of retaliatoiy animus on the part of the
plaintiffs employer. Id.
Here, Plaintiff has not alleged any conduct that could be considered evidence of
retaliatory animus in the instant case. Three of the five allegedly retaliatory incidents—
the delay in payment ofwages, the student complaint with the Office of Civil Rights, and
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the removal of the course at Fort Lee—^were resolved promptly and without any
significant inconvenience to Plaintiff The remaining two incidents—^Provost Hill's
reference to Plaintiff as a "trouble maker," and Hill's e-mail criticizing Plaintiff-
represent at best a strained personal relationship between Plaintiffand one of her
superiors. That alone does not give rise to an inference of retaliatory animus. See
Burlington Northern, 548 U.S. at 68 ("[a]n 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").
Therefore, Counts II and IV will be dismissed without prejudice.
IV. CONCLUSION
Based on the foregoing, Defendants' Motion to Dismiss (ECF No. 28) will be
granted. Counts I, II, III, IV and V against Defendants will be DISMISSED WITHOUT
PREJUDICE.
An appropriate Order will accompany this Memorandum Opinion.
The clerk is directed to send a copy of this Opinion and the accompanying Order
to all counsel of record.
fs/
Henry E. Hudson
United States District Judge
Date:
Richmond, Virgmia
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