Motley, Sr. v. Commonwealth of Virginia et al

Filing 11

MEMORANDUM OPINION. See for complete details. Signed by District Judge M. Hannah Lauck on 03/24/2017. (mailed copy to pro se Plaintiff) (nbrow)

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

VICTOR MOTLEY, SR.,
Plaintiff,
V.

Civil Action No. 3:16cv595

COMMONWEALTH OF VIRGINIA, et al.
Defendant.

MEMORANDUM OPINION

This matter comes before the Court on two motions: (1) the "Motion to Dismiss

Plaintiffs Complaint" (the "Motion to Dismiss"),^ filed by Defendants the Commonwealth of
Virginia (the"Commonwealth" or "Virginia"), the Virginia Department of Medical Assistance

Services ("DMAS"), and Valerie Harrison (collectively, the "Defendants"), (ECF No. 2);^ and,
(2) Motley's"Motion to Compel Answers to Plaintiff'sFirstDiscovery Request and Motion to
Enlarge Record" (the "Motion to Compel and Enlarge"), (ECF No. 6).

' The Defendants filed a "Demurrer" and a "Motionto Dismiss/Special Plea of Sovereign
Immunity" in the Circuit Court for the Cityof Richmond (the"State Court") priorto removal.
Under Federal Rule of Civil Procedure 81(c)(2), when a case is removed, "repleading is
unnecessary unless the court orders it." Fed. R. Civ. P. 81(c)(2). Typically, "after removal, the
demurrer filed in state court will be treated as the federal equivalent—a motion to dismiss for
failure to state a claim," Morgan v. Wal-Mart Stores E., LP, No. 3:10cv669,2010 WL 4394096,
at *2 (E.D. Va. Nov. 1,2010); see also McCray v. ArdelleAssocs. Inc., No. 4:14cvl58,2015 WL
3886318, at *3 (E.D. Va. June 23,2015) ("The obvious implication of this language is that a
party need not refile pending state motions in the federal court.").
Here, however, the Defendants filed the Motion to Dismiss on their own initiative, which
incorporates the arguments timely made in the StateCourt. Accordingly, the Courtneedonly
consider the Motion to Dismiss. See Morgan, 2010 WL 4394096, at *2 ("Because Defendant
timely filed a demurrer, and subsequently filed an identical 12(b)(6) motion, it makes no
difference which motion this Court considers to resolve the issues raised therein.").

^The Defendants provided Plaintiff Victor Motley, Sr., proceeding pro se, with
appropriate notice pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). (ECF
No. 2.)

Motley has responded to the Motion to Dismiss, (ECF No. 4), and the Defendants have
replied, (ECF No. 5). The Defendants have responded to the Motion to Compel and Enlarge,

(ECF No. 8), and Motley has replied, (ECF No. 11). Accordingly, the matters are ripe for

disposition. The Court dispenses with oral argument becausethe materials before it adequately
present the facts and legal contentions, and argument would not aid the decisional process.
For the reasons that follow, the Court will grant the Motion to Dismiss and will deny as
moot the Motion to Compel and Enlarge.
L Factual and Procedural Background
A.

Procedural Background

Motley filed his Motion for Judgment (the "Complaint") in the State Court, allegingtwo

counts against the Defendants: (1) age and race discrimination^ (collectively, "Count I");"^ and,
(2) negligence ("Count11"). (Compl., ECF No. 1-1.) The Defendants removed the case to this

Court pursuant to 28 U.S.C. §§1441^ and 1446.^ The Defendants assert federal question
jurisdiction under 28 U.S.C. § 1331^ astheir basis for removal.

^Inthe Complaint, Motley fails to setforth the basis for his discrimination claims.
Motley appears to bringhis race discrimination claimpursuant to Title VII of the Civil Rights
Act of 1964,as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and his age discrimination
claim pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 er seq.
("ADEA"). The Court will evaluate Motley's discrimination claims under both laws.
Alternatively, Motley seems to suggest that his discrimination claims arise out of
constitutional violations. The Court will assess Motley's constitutional claims under 42 U.S.C.

§ 1983, which provides a private right of action for a violation of constitutional rights by persons
acting under the color of state law.

^The Court will refer to Motley's ADEA claim as "Count I.A," Motley's Title VII claim
as "Count LB," and Motley's § 1983 claim as "Count I.C."

^Section 1441(a) provides, inpertinent part:
[A]ny civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or the

Prior to removal, the parties filed various pleadings in the State Court. Motley filed his
"Request for Production of Documents," (ECF No. 1-3), his "Notice of Objection to Defendants

Resisting or Obstructing of Legal Process," (ECF No. 1-3), and his "Motion for Leave to Amend

Motion for Judgment" (the "Motion for Leave to Amend"), (ECF No. 1-4).^ The Defendants
filed a Demurrer, seeking to demur the Complaintfor failure to state a claim, (ECF No. 1-5), and
a Motion to Dismiss/Special Plea of Sovereignty, seekingto dismiss the Complainton the
groimds that sovereign inmiunity bars it, (ECF No. 1-6).

Following removal, the Defendants filed the Motion to Dismiss pursuant to Federal Rules

of Civil Procedure 12(b)(l)^ and 12(b)(6), incorporating the arguments submitted tothe State
Court. (ECF No. 3.) Motley respondedto the Motion to Dismiss, (ECF No. 4), and the
Defendants replied, (ECF No. 5). Motley then filed the Motion to Compel and Enlarge. (ECF
defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.
28 U.S.C. § 1441(a).

^Section 1446 articulates the procedure for removing civil actions firom a state court.
' "The district courts shall have original jurisdiction of allcivil actions arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

^Motley's Motion for Leave to Amend sought to withdraw Count II, Motley's negligence
claim. The Defendants removed the case to this Court before the State Court ruled on the

Motion for Leave to Amend. Motley has not sought leave to amend the Complaint in this Court.
Although re-pleading is not necessary following removal, the Courtwill not grantthe Motion for
Leave to Amend. In briefing. Motley opposes the Defendants' request to dismiss the claim. In
an abundance of caution, and construing Motley's filings liberally as it must, the Court assumes
that Motley still wishes to pursue Count II.

^Federal Rule of Civil Procedure 12(b)(1) allows dismissal for "lack of subject-matter
jurisdiction." Fed. R. Civ. P. 12(b)(1).

Federal Rule of Civil Procedure 12(b)(6) allows dismissal for "failure to state a claim
upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).

No. 6.) The Defendants responded to the Motion to Compel and Enlarge, (ECF No. 8), and
Motley replied, (ECF No. 11).

B.

Summary of Allegations in the Complaint"

Motley brings this action against the Defendants, seeking only monetary damages for

race and age discrimination,and for negligence. Motley applied for a position as a Hearing
Officer with DMAS on or about August 7, 2013. On October 15,2013, Motley learned that
DMAS did not select him for an interview. On January 27,2014, Motley filed a Charge of

Discriminationwith the Equal Employment Opportunity Commission (the "EEOC"), alleging

race and age discrimination pursuant to Title VII and the ADEA. Motley's EEOC Charge of
Discrimination contained two paragraphs, which stated the following:
1. On August 7, 2013, I applied for the position of Hearing Officer with the
above named employer. On or about October 15, 2013,1 became aware that I
was not chosen for an interview and subsequently not hired for the position.

2. I believe I was discriminated against because of my race, Black, in violation
of Title VII of the Civil Rights Act of 1964, as amended, and because of my
age, 60, in violation of the Age Discrimination in Employment Act of 1967, as
amended.

(EEOC Charge of Discrimination, ECF No. 3-1.) On August 14, 2015, the EEOC issued a
Dismissal and Notice of Right to Sue.

Federal district courts have a duty to construe pro se pleadings liberally. Bracey v.

Buchanan, 55 F. Supp. 2d 416,421 (E.D. Va. 1999). That said, apro se plaintiff must
nevertheless allege sufficient facts to state a cause of action. Id. (citing Sado v. Leland Mem 7

Hosp., 933 F. Supp. 490,493 (D. Md. 1996)). The Court cannot act as a pro se litigant's

"advocate and develop, sua sponte, statutory and constitutional claims" that the litigant failed to

For purposes of the Motion to Dismiss, the Court will assume the well-pleaded factual
allegations in the Complaint to be true and will view them in the light most favorable to Motley.
Mylan Labs., Inc. v. Matkari, 1 F.3d 1130,1134 (4th Cir. 1993).

raise on the face of the complaint. Newkirk v. Circuit Court ofHampton, No. 3:14cv372,2014
WL 4072212, at *1 (E.D. Va. Aug. 14,2014).
II. Analysis: The Motion to Dismiss for Lack of Subiect-Matter Jurisdiction

The Defendants seek to dismiss, for lack of subject-matter jurisdiction, particular coxmts

against specific defendants. With respect to Count LA, Motley's ADEA claim, the Defendants
10

argue the following: (1) the Eleventh Amendment to the United States Constitution bars
Motley's claim against all defendants; and, (2) Motley's claim against Harrison in her official

capacity fails because it is duplicative. On Count LB, Motley's Title VII claim, the Defendants
contend that Motley's claim against Harrison in her official capacity fails because it is
duplicative. On Count I.C, Motley's § 1983 claim, the Defendants assert that it cannot survive
because Motley fails to raise it against any defendant in his or her individual capacity. The
Defendants also posit that Motley cannot advance an age discrimination claim under § 1983.

Regarding Count II, Motley's negligence claim, the Defendants contend that they have sovereign
immunity against Motley's negligence claim. The Defendants also argue that Motley failed to
comply with the Virginia Tort Claims Act's (the "VTCA") notice requirements, Va. Code
§ 8.01-195.1 e/ seq., and that Virginia's statute of limitations bars any claims brought pursuant to
§ 1983 or the VTCA.

For the reasons that follow, the Court will dismiss the following claims for lack of

jurisdiction: Counts I.C and II against all Defendants; and. Counts LA and LB against only
Harrison.

"The judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of another
State or by Citizens or Subjects of any Foreign State." U.S. Const, amend. XL

A.

Motion to Dismiss for Lack of Subiect-Matter Jurisdiction Standard

In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenging the

Court's subject-matterjurisdiction, the burden rests with the plaintiff, as the party asserting
jurisdiction, to prove that federal jurisdiction is proper. See Int 7 Longshoremen's Ass 'n v. Va.

Int'l Terminals, Inc., 914 F. Supp. 1335,1338 (E.D. Va. 1996) (citing McNuttv. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219

(4th Cir. 1982)). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) can
attack subject-matterjurisdiction in two ways. First, a Rule 12(b)(1)motion may attack the

complainton its face, assertingthat the complaintfails to state a claim upon which subjectmatter jurisdiction can lie. See Int'l Longshoremen 'sAss'n, 914 F. Supp. at 1338; see also
Adams, 697 F.2d at 1219. In such a challenge, a court assumes the truth of the facts alleged by

plaintiff, thereby functionally affording the plaintiffthe same procedural protection he or she
would receive under Rule 12(b)(6) consideration. See Int 7 Longshoremen's Ass 'n, 914 F. Supp.
at 1338; see also Adams, 697 F.2d at 1219.

A Rule 12(b)(1)motion may also challenge the existence of subject-matterjurisdiction in
fact, apart from the pleadings. See Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991); Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338;
see also Adams, 697 F.2d at 1219. In such a case, because a party challenges the court's '"very

power to hear the case,"' the trial court is free to weigh evidence to determine the existence of
jurisdiction. Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338 (quoting Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness attaches to

the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits ofjurisdictional claims. See id; see also Adams,
697 F.2datl219.

If the facts necessary to determine jurisdiction are intertwined with the facts central to the
merits of the dispute, the proper course of action is for the court to find that jurisdiction exists

and then to resolve the factual dispute on the merits unless the claim is made solely for the

purpose of obtaining jurisdiction, or is determined to be wholly insubstantial and frivolous. Bell
V. Hood, 327 U.S. 678, 682-83 (1946); UnitedStates v. North Carolina, 180F.3d 574, 580 (4th
Cir. 1999); Adams, 697 F.2d at 1219.
B.

The Eleventh Amendment Does Not Bar Count LA

Although they seek dismissal basedon Eleventh Amendment immunity, the Defendants

voluntarily removed this caseto this Court. Thus, the Eleventh Amendment does not bar
Motley's Count LA, which alleges a violation of the ADEA.
The Eleventh Amendment bars claims against state actors unless Congress has

"abrogate[d] the [sjtates' Eleventh Amendment immunity ... by stating unequivocally its desire
to do so and only pursuant to a valid exercise of constitutional authority." Constantine v. Rectors

& Visitors ofGeorge Mason Univ., 411 F.3d 474,484 (4thCir. 2005) (citing Seminole Tribe of
Fla. V. Florida, 517 U.S. 44, 55 (1996)). As the United States Court of Appeals for the Fourth
Circuithas explained, 'the Supreme Court [of the United States]... specifically rejected
Congress'[s] attempts to abrogate Eleventh Amendment immunity with respectto ... the
ADEA." Id at 496.

The Defendants' Motion to Dismiss based on Eleventh Amendment immunity falters as

to each defendant. While the immunityprovided by the Eleventh Amendmentwould apply to
each defendant in this case had it originated in federal court, it did not. The Defendants

The Commonwealthof Virginia would have immunity because "an unconsenting State
is immune from suits brought in federal courts by her own citizens." Edelman v. Jordan, 415
U.S. 651, 663 (1974). DMAS would have immunity because the Eleventh Amendment extends
to "state agents and state instrumentalities." Regents ofthe Univ. ofCal v. Doe, 519 U.S. 425,

removedthis case to this Court after Motley filed suit in the State Court. The Eleventh

Amendment is a privilege of the states, and as such, "[a] State remains free to waive its Eleventh
Amendment immunity from suit in a federal Court." Lapides v. Bd. ofRegents ofUniv. Sys. of
Ga, 535 U.S. 613, 618 (2002). When a state voluntarily invokes the jurisdiction of the federal

courts by removing a case from its own courts to federal court, it waives its Eleventh

Amendment immunity from suit in federal court. Id. at 624. Accordingly, by removing this case

and voluntarily invoking thejurisdiction of this Court, the Defendants have waived any Eleventh
Amendment immunitythey may have possessed. Therefore, the Court will deny the Defendants'
Motion to Dismiss based on Eleventh Amendment immunity.

C.

Motley Cannot Bring Counts I.A, I.B, and I.C Against Both DMAS and
Harrison in Her Official Capacity

The Court will dismiss Count I in its entirety against Harrison in her official capacity.

Construing his Complaintliberally. Motley brings his ADEA, Title VII, and § 1983 claims
(Counts LA, l.B, and I.C, respectively) against both DMAS and Harrison in her official capacity.

"Suingan individual in his [or her] official capacity ... is essentially the same as suing the entity
for which he [or she] works." Wyatt v. Steidel, No. 3:14cv64, 2014 WL 3945864, at *1 (E.D.

Va. Aug. 12,2014) (citing Hafer v. Melo, 502 U.S. 21,25 (1991)). In light ofthis redundancy,
the Court will grant the Motion to Dismiss in part and dismiss Counts I.A, LB, and I.C as

brought against Harrison. See Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) ("The
district court correctly held that the ... claim against Martin in his official capacity as

429 (1997). Finally, Harrison would have immunity because "[s]tate officers acting in their
official capacity are also entitled to Eleventh Amendment protection." Lytle v. Griffith, 240 F.3d
404,408 (4th Cir. 2001).
8

Superintendent is essentially a claim against the Board and thus should be dismissed as

duplicative.").^"^
D.

The Defendants Cannot Be Held Liable on Count I.C Because They Do Not
Qualify as "Persons^* Under S 1983

Presuming that Motley asserts Count I.C. pursuant to § 1983, his claim fails because the

Defendants do not constitute "persons" under that statute. The Supreme Court has held that
states, state agencies, and state officials sued in their official capacities do not constitute

"persons" subject to suit under § 1983. See Will v. Michigan Dep't ofState Police, 491 U.S. 58,

71 (1989) ("Obviously, state officials literally are persons. But a suit against a state official in
his or her official capacity is not a suit against the official but rather is a suit against the official's
office. As such, it is no different from a suit against the State itself" (citations omitted)).
Motley brings suit against Virginia, DMAS, and Harrison in her official capacity. Because none

of the defendants qualify as a "person," Motley cannot pursue the alleged constitutional

violations pursuant to § 1983.'^ The Court will grant the Motion to Dismiss inpart and dismiss
Count I.C. against the Defendants.

Even if Motley intended to bring Count I against Harrison in her individual capacity,
his claim would fail. Neither the ADEA nor Title VII permit suit against individuals as
"employers." See, e.g., Lissau v. S. FoodServ., Inc., 159 F.3d 177,181 (4th Cir. 1998)
("[S]upervisors are not liable in their individual capacities for Title VII violations."); Bland v.
Virginia State Univ., No. 3:06cv513, 2007 WL 446122, at *5 (E.D. Va. Feb. 7, 2007) ("[T]the
Fourth Circuit has stated that the language of the ADEA limits liability to 'employers' and
therefore prohibits individual liability against employees as agents of the employer." (citing
Birbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994)). The Complaint also lacks
any allegations regarding Harrison's personal involvement in the purported discrimination.
The Defendants alternatively argue that Motley cannot raise an age discrimination
claim pursuant to § 1983 because the ADEA exclusively govern age discrimination. Although
the Court need not reach this argument, it would have merit. See Zombro v. Baltimore City
Police Dep't, 868 F.2d 1364 (4th Cir. 1989) (holding that plaintiffs cannot assert violations of
substantive rights under the ADEA by way of a § 1983 action).

D.

Sovereign Immunity Bars Suit Against the Defendants on Count II

Sovereign immunity bars Motley's Count II, his negligence claim, against the

Defendants. "Absent an express statutory or constitutional provision waiving sovereign
immunity, the Commonwealth and its agencies are immune from liability for the tortious acts or

omissions oftheir agents or employees." Rectors and Visitors ofUniv. ofVa. v. Carter, 591
S.E.2d 76, 78 (Va. 2004). The Commonwealth has waived its sovereign immunity only in the

limited manner prescribed by the VTCA.'^ Va. Code § 8.01-195.1 e/seq. The VTCA permits
suit against the Commonwealth, but not against its employees, officers, or agencies. See Carter,
591 S.E.2d at 78. Excluded from the Commonwealth's waiver of sovereign immunity, however,

are "legislative functions" of state agencies. Va. Code § 8.01-195.3(2). Courts consider
flmctions "legislative" when the decision-making process by the state agency requires the

exercise of discretion, particularly in decisions regarding the allocation of public funds. See
Maddox v. Virginia, 594 S.E.2d 567, 570 (Va. 2004).

Here, the alleged negligence stems from DMAS's decision to not interview Motley for

the position of Hearing Officer. The parties do not dispute that DMAS exercises discretionin

the hiringprocess, including by determining whomto interview. This discretion necessarily
entails decision-making with respect to how to allocate public funds needed to interviewand hire
employees. Because the Commonwealthhas not waived its sovereign immunity for such
employment decisions, the Commonwealth has immunity on Count II, Motley's negligence
claim.

In his brief in opposition. Motley asserts that he brings his negligence claim (Count II)
pursuant to § 1983, not the VTCA. As discussed above, even if brought under § 1983, this claim
would fail because none of the Defendants qualify as "persons" under § 1983. Regardless,
Motley articulates no basis, and the Court sees none, for asserting a negligence claim under
§ 1983.
10

DMAS also has immunity because the VTCA does not waive the sovereign immunity of
the Commonwealth's agencies. See Carter, 591 S.E.2d at 78. Finally, Harrison has sovereign
immunity because, at all times relevant to this action, she acted in her official capacity as an

Employment Manager at DMAS (an immune agency) and performed discretionary acts under
DMAS's control and in DMAS's interests. See Messina v. Burden, 321 S.E.2d 657, 663

(Va. 1984). Accordingly, the Court will grant the Motion to Dismiss Count II, Motley's
negligence claim, against the Defendants.
IIL Analysis: The Motion to Dismiss for Failure to State a Claim

The Defendants' Motion to Dismiss also seeks to dismiss the Complaint for failure to

state a claim. Only Counts LA and I.B, Motley's ADEA and Title VII claims, respectively,

remain and only against the Commonwealth and DMAS. The Court will dismiss Counts LA and

LB because Motley fails to state a claim for which relief could be granted.'^
A.

Motion to Dismiss for Failure to State a Claim Standard

"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) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a
The Defendants alternatively argue that, if Motley brings Count II, the negligence
claim, pursuant to the VTCA, the Complaint fails to comply with the notice requirements of
Virginia Code § 8.01-195.6, which requires that claimants file a written statement with the
Director of the Division of Risk Management of the Attorney General within one year after the
cause of action accrued. Because the Defendants have not waived sovereign immunity, the
Court need not reach this argument. Nonetheless, the Court agrees that Motley does not
reference any form of notice submitted prior to the filing of suit.
The Court will grant Motley leave to amend the Complaint on Counts LA and LB
against DMAS and the Commonwealth because Motley could, as to these two counts only,
conceivably cure his failure to adequately plead a claim.
11

plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most
favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130,1134 (4th Cir. 1993);
see also Martin^ 980 F.2d at 952.

The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the

claim showingthat the pleader is entitled to relief,' in order to 'give the defendantfair notice of
what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations

omitted); see also Ashcroft v. IqbaU 556 U.S. 662, 679 (2009). Instead, a plaintiff must assert

facts that rise above speculation and conceivability to those stating a claim that is "plausible on
its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the

plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.L
DuPont de Nemours & Co., 324 F.3d 761,765 (4th Cir. 2003) (citations omitted).

"If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment under

Rule 56," and "[a]ll parties must be given a reasonable opportunity to present all the material that
is pertinent to the motion." Fed. R. Civ. P. 12(d); see Laughlin v. Metro. Wash. Airports Auth.,
149 F.3d 253,260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However,
"a court may consider official public records, documents central to plaintiffs claim, and

12

documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion
into one for summary judgment] so long as the authenticity of these documents is not disputed."

Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citing^//. Energy, Inc.
V. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Phillips v. LCIInt'l, Inc.,

190 F.3d 609, 618 (4th Cir. 1999); Gasner v. Cty. ofDinwiddie, 162 F.R.D. 280,282
(E.D. Va. 1995)).
B.

Motley Fails to State a Claim on Count I.A

The Court already has dismissed Count I.A, Motley's ADEA claim, against Harrison.

The Court will dismiss Count LA against DMAS and the Commonwealth because Motley fails to
state a claim for age discrimination under the ADEA.

To succeed on a claim under the ADEA, a plaintiff "must prove, by the preponderance of

the evidence, that age was the 'but for' cause of the challenged adverse employment action."

Gross V. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).'^ Aplaintiff can show cause either
through direct evidence of intentional discrimination or throughthe indirect, burden-shifting
framework ofMcDonnellDouglas Corp. v. Green, 411 U.S. 792, 802 (1973), and its progeny.

Under the McDonnell Douglas burden shifting scheme,once the plaintiff makes a prima facie
case of age discrimination,"the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action" or "but for" causation will be
presumed. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 111, 285 (4th Cir. 2004).
In evaluating Motley's discrimination claims, the Court is bound by the scope of the
allegations in Motley's EEOC Charge. See, e.g., Balas v. Huntington Ingalls Indus., Inc.,
711 F.3d 401,407 (4th Cir. 2013) ("In any subsequent lawsuit alleging unlawful employment
practices under Title VII [or the ADA], a federal court may only consider those allegations
included in the EEOC charge."). If a plaintiffs Title VII or ADA claims "exceed the scope of
the EEOC charge and any charges that would naturally have arisen from an investigation thereof,
they are procedurally barred." Id. (internal citations and quotation marks omitted). Given that a
plaintiff must exhaust administrative remedies, staying within the scope of the EEOC charge
assures that a federal court has jurisdiction over a claim. Id.
13

To establish a prima facie ADEA case under the adapted McDonnellDouglas scheme, a
plaintiff must show: (1) he is a member of the protected class, namely "individuals who are at
least 40 years of age," 29 U.S.C. § 631(a); (2) he applied for and was qualified for the position;

(3) he was rejecteddespite his qualifications; and, (4) the positionremained open or was filled
by a substantially younger person. See Arthur v. Pet Diary, 593 F. App'x 211,217 (4th

Cir. 2015); Hill 354 F.3d at 285; Henson v. Liggett Grp., Inc., 61 F.3d 270, 274 (4th Cir. 1995).
Here, Motley fails to plausibly allege the first and fourth elements required to

demonstrate a prima facie case of his age discrimination claim. First, in the Complaint, Motley
fails to allege that he is a member of a protected class. He does not allege his age at all, much
less that it exceeds 40 years. While Motley attaches documents from which his age can be
inferred, (Motley Exhibits 24, ECF No. 4-1), such a presentation does not satisfy the pleading

requirement ofFederal Rule ofCivil Procedure 8.^° Motley must plead all facts sufficient to
state a cause of action "on the face of the Complaint." Newkirk, 2014 WL 4072212, at *1.
Motley cannot spackle documents to his Complaint in an attempt to state a claim. See Hogge v.
Stephens, No. 3:09cv582, 2011 WL 2144566, at *2 (E.D. Va. May 31,2011).

Motley also fails to allege the fourth element of his claim, that the position he sought

remained open or was filled by a substantially youngerperson. Accordingly, the Complaint fails
to state a plausible discrimination claim underthe ADEA. The Courtwill grantthe Motionto
Dismiss in part and dismiss Count I.A against DMAS and the Commonwealth.

Rule 8 states, in pertinent part: "A pleading that states a claim for relief must contain
... a short and plain statement of the claim showing that the pleader is entitled to relief" Fed. R.
Civ. P. 8(a)(2).
14

C.

Motley Fails to State a Claim on Count I«B

The Court already has dismissed Count LB, Motley's Title VII claim, against Harrison.
The Court will dismiss Count I.B against DMAS and the Commonwealthbecause Motley fails to
state a claim for race discrimination under Title VII.

Title VII makes it "an unlawful employmentpractice" for any employer"to fail or refuse
to hire ... or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). When asserting a claim of employment
discrimination under Title VII, a plaintiff may prove his or her claim through direct or
circumstantial evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003); see Love-

Lane V. Martin, 355 F.3d 766, 786 (4th Cir. 2004). When, as here, the plaintiffalleges no direct
evidence of discrimination, the plaintiffmust rely on the burden-shifting scheme established in
McDonnell Douglas, 411 U.S. 792.

Under the McDonnell Douglasframework, the plaintiffmustfirst demonstrate a prima
facie case of his or her claim. Id. at 802. "[A] prima facie case of [race] discrimination under

Title VII is alleged if a plaintiff pleads that: (1) he is a member of a protected group; (2) he

applied for the position in question; (3) he was qualified for the position;^^and[,] (4) he was
rejected for the position imder circumstances giving rise to an inference of unlawful
discrimination," Clarke v. Va. State Univ., No. 3:15cv374, 2016 WL 521528, at *3 (E.D. Va.

Feb. 5, 2016) (citing Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998)). As a general rule.

Motley emphasizes his law degree when alleging that he was qualified for the job of
hearing officer. Motley also, however, repeats a misapprehension throughout his Complaint. He
frequently contends that DMAS's failure to hire stemmed from pretext becausehe was told that
DMAS did not hire him for lack of a law degree. The Court finds only one reference in Motley's
filings to his legal training and, in it, DMAS states that "Mr. Motley does possess a JD [sic]."
(Motley Exhibits 30, ECF No. 4-1.)
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"[wjhere the plaintiff alleges discrimination in the employer's failure to hire him, the plaintiff
must show that he was rejected in favor of someone outside the protected class." Id. (citing

McDonnell Douglas, 411 U.S. at 801).^^
Here, Motley fails to plausibly allege the first and fourth elements required to

demonstrate a prima facie case of his racial discrimination claim. Again, Motley fails to allege
that he is a member of a protected class. Although he claims race discrimination, Motley does

not identify his race on the face of the Complaint. As noted earlier. Motley, even proceeding pro
se, cannot meet pleading standard unless he states a claim on the face of the Complaint. Any

attempt to spackle documents on to the Complaintto state a claim, (MotleyExhibits 10, ECF No.
4-1), is improper and does not satisfy Rule 8's requirements.

Second, Motley fails to allege facts suggesting circumstances giving rise to an inference
of unlawful discrimination. To satisfy the fourth element. Motley must demonstrate that
similarly-situated applicants outside the protected class received more favorable treatment. See

McDonnell Douglas, 411 U.S. at 801. Motley's Complaint contains no allegation that similarlysituated applicants outside his class were treated more favorably. The Complaint also fails to
describe any circumstances surrounding the applicationprocess that might, even when construed
liberally, permit the Court to infer race-based discrimination. The Complaintdoes not identify
the individual who actuallyreceived the position for which Motley applied. The Complaint
merely states that DMAS did not interview Motley for a job for which he was allegedly

qualified. That allegation, standingalone, fails to state a plausible discrimination claim under
Although a Title VII plaintiff need not plead facts that constitute a prima facie case, see
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), a plaintiff still bears the burden of
alleging facts "sufficient to state all the elements of her claim." Jordan v. Alternative Res. Corp.,
458 F.3d 332, 346 (4th Cir. 2006) (internal quotation marks omitted), overruled on other
grounds by Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015).

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Title VII. The Court will grant the Motion to Dismiss in part and dismiss Count I.B, the Title
VII claim, against DMAS and the Commonwealth.
TTT. Analysis: The Motion to Compel and Enlarge

Motley has filed a Motionto Compel and Enlarge, seeking to compel the Defendants'
discoveryresponsesto various discoveryrequests. The Defendants represent that, prior to

Motley's filing of the Motionto Compel and Enlarge, the Defendants' counsel informed Motley
that his requests for discovery werepremature. Because the Court will dismiss the Complaint,
the Court declines to address Motley's premature discoveryrequests. The Court will deny as
moot Motley's Motion to Compel and Enlarge.
IV. Conclusion

For the foregoing reasons, the Court will grant the Motion to Dismiss and deny as moot
the Motion to Compel and Enlarge.

M.H£

United States district Judge
Richmond, Virginia
Date:

The Defendants additionally contend that Motley fails to state a claim on Counts I.C
and II, Motley's § 1983 and negligence claims. Although, in light of its Rule 12(b)(1) analysis,
the Court need not address these claims under Rule 12(b)(6), the Court would agree that

Motley's allegations fall far short of pleading requirements. First, Count I.C, as explained in the
Court's Rule 12(b)(1) analysis, alleges § 1983 claims against defendants that do not qualify as
"persons" under that statute. Even were Motley to bring suit against Harrison in her individual
capacity, the Complaint wholly omits Harrison's personal involvement in the facts purportedly
giving rise to Motley's claim. Second, Count II fails to allege a duty the Defendants owed to
Motley. The Court cannot see how the Defendants could have violated a duty of care they owed
to Motley simply by hiring another applicant in spite of Motley's qualifications.
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