Georges v. Dominion Payroll Services, LLC

Filing 13

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 08/24/2017. (tjoh, )

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

ANGELA GEORGES,
Plaintiff,
V.

Civil Action No. 3:16cv777

DOMINION PAYROLL SERVICES, LLC,
Defendant.

MEMORANDUM OPINION

This matter comes before the Court on the Motion to Dismiss filed by Defendant

Dominion Payroll Services ("Dominion") pursuant to Federal Rule ofCivil Procedure 12(b)(6).^
(ECF No. 9.) Plaintiff Angela Georges has responded to the Motion to Dismiss, and Dominion

has replied. (ECF Nos. 11,12.) The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.^
This matter is ripe for disposition. The Court dispenses with oral argument because the 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 deny the Motion to Dismiss.
I. Federal Rule of Civil Procedure I2(bV6) 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 plaintiff^s well-pleaded

*Rule 12(b)(6) allows dismissal for "failure to state a claim upon which relief can be
granted." Fed. R. Civ. P. 12(b)(6).
"The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

allegations are taken as true and the complaint is viewed in the lightmost favorable to the
plaintiff, MylanLabs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Martin,
980 F.2d at 952. This principle applies only to factual allegations, however, and "a court

considering a motion to dismiss can choose to beginby identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).

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 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) (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). Instead, a plaintiff must assert facts that rise above speculation and conceivabilityto
those that "show" a claim that is "plausible on its face." Iqbal, 556 U.S. at 678-79 (citing
Twombly, 550 U.S. at 570; Fed. R. Civ. P. 8(a)(2)). "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." Id. 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.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).

11. Procedural and Factual Background

A.

Summary of Allegations in the Complaint^

On or aboutMay 4,2015, Dominion hired Georges, a 52-year-old female, as Benefits
Implementation Specialist. The qualifications for the Benefits Implementation Specialist
position included an associate'sdegree (witha bachelor's degree preferred) and three years'
experience in employee benefits, or an equivalent combination of experience and education.
Georges obtained her Bachelor of Science in Business with a focus in Marketingand

Management, and she obtained her Master's Degree in Business Administration with a focus in
Organizational and Human Resources Development. She previouslyworked as a "Quickbooks
Online Small Business Consultant" and as a "Tax Services/Support Advisor" at Intuit in

Fredericksburg, Virginia. (Compl. ^ 7.) At Intuit, Georges worked with business owners,
accountants, and tax professionals to identify solutions to various business and financial

problems. From 2010 to 2012, Georges worked as a Claims Counselorat HILLDRUP, where
she tracked and recovered undelivered items and developed procedures to improve workflow and

efficiency. Prior to that, fi:om 2000 to 2007, Georges worked at Mary Washington University as
an Office Manager and Administrative Program Specialist. At Mary Washington University,
Georges maintained the school's credit card program, trained and supervised office and student
staff, created a purchasing training manual, and managed policies for the purchase system.

Finally, from 1998 to 2000, Georges worked as a Senior Executive Administrative Assistant at
Peninsula Health Care, where she analyzed life and health benefits and group account renewals,
consulted with human resources, and managed administrative functions.

^For purposes ofthis motion, the Court assumes the well-pleaded factual allegations in
the Complaint to be true and views them in the light most favorable to Georges. See Matkari,
7F,3datll34,

As Benefits Implementation Specialistat Dominion, Georges had the following
responsibilities: customer support; tracking of customer date; manage plans to ensure
deliverables and launch dates are met; and, customer training for self-sufficiency after

implementation. In her tenure as Benefits Implementation Specialist, Dominionnever
disciplined Georges, and at all times, Georges received positive feedback fi:om the department
manager, Laura Johnson.

During the first days of her tenure at Dominion, Georges asked for an employee
handbook. Lora Meade, the human resources director, informed Georges that no such handbook

existed. In fact, while employedat Dominion, Georges never received a statementof
Dominion's employment policies or procedures. Approximatelytwo weeks after Georges began
her tenure at Dominion, Johnson complained to her about upper-management and being

overwhelmed. Georges offered to help Johnson, and in June 2015, Georges received an email
from Johnson praising Georges's work.

On or about July 13, 2015, Johnson and Meade terminated Georges without warning or
notice. Johnson and Meade did not communicate to Georges any substantive performance

issues, and the termination conflicted with previous statements regarding Georges's employment.
At the time of termination, Johnson and Meade did not provide Georges with any records

regarding her job performance, duties, or disciplinary actions. Georges alleges that, based on
information and belief. Dominion filled her position with a younger, less experienced employee.

B.

Procedural History

Georges's Complaint alleges one count: "Violations of the Age Discrimination in

Employment Act [the 'ADEA']/'^ (Compl. 5.) Georges asserts membership inthe class of
peopleprotected by the ADEA because she is over forty years old. She contends that Dominion
wrongfully terminated her by intentionally discriminating againsther on the basis of age.
Georges claimsto have suffered damages, including embarrassment, inconvenience, humiliation,
severe mental anguish, pain, suffering, loss of income, litigation expenses, consequential
damages, and statutory damages.
Dominion filed an Answer and the Motion to Dismiss for failure to state a claim

simultaneously,^ Georges responded to the Motion to Dismiss, and Dominion replied.
111. Analysis: Georges Pleads Facts Plausibly Stating an ADEA Claim

Dominion seeks to dismiss the Complaint because, in its words, Georges "does nothing
more than assert bare-bones facts [that] fail to demonstrate any probability of discrimination
followed by legal conclusions that 'intentional discrimination' occurred." (Mem. Supp. Def.'s
Mot. Dismiss 5, ECF No. 10.) Dominion contends that Georges's allegations, taken as true and

viewed in the light most favorable to Georges, suggest only a possibility of intentional
discrimination.

^The ADEA makes it unlawful for an employer "to discharge any individual or otherwise
discriminate against any individual with respect to his [or her] compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).

^Generally, "[i]f[a] defendant decides to assert a Rule 12(b) defense bymotion,... he
[or she] must do so before filing the answer.... However, should the defendant file a Rule 12(b)
motion simultaneously with the answer, the district court will view the motion as having
preceded the answer and thus as having been interposed in a timely fashion." 5C Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1361 (3d ed.).

While the Complaintalleges no direct evidence of discrimination, Georges's allegations

plausibly state a claim for age discrimination. Accordingly, the Court will deny the Motionto
Dismiss.

A.

Stating a Claim for Employment Discrimination Based on Age

The ADEA prohibits employers from discharging "or otherwise discriminat[ing] against
any individual with respect to his [or her] compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C. § 623(a)(1). A plaintiff bringing a
discrimination claim under the ADEA must prove that age was not merely a motivating factor of
the challenged adverse employment action but was in fact its "but-for" cause. Hartman v. Univ.

ofMd at Baltimore, 595 F. App'x 179,181 (4th Cir. 2014) (citationsomitted). "[T]he plaintiff
may either present direct evidence of the employer's impermissible motivation or may proceed
under the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-07 (1973)." Id. The McDonnell Douglas standard requires a showing that:

(1) [he or] she is 'a member of a protected class'—^that is, forty years or older;
(2) [he or] she 'suffered adverse employment action;' (3) [he or] she 'was
performing her job duties at a level that met her employer's legitimate
expectations at the time of the adverse employment action; and[,] (4) the position
remained open' or [he or] she was replaced by a substantially younger person.
Id. (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,285 (4th Cir. 2004)).
Importantly, the Supreme Court of the United States has found that, in order to survive a
motion to dismiss for failure to state a discrimination claim, a plaintiff need not establish a prima

facie case under the McDonnell Douglas standard. See Swierkiewicz v. Sorema, 534 U.S. 506,
512 (2002) ("Given that the prima facie case operates as a flexible evidentiary standard, it should
not be transposed into a rigid pleading standard for discrimination cases."). The United States
Court of Appeals for the Fourth Circuit has reached the same conclusion in the age
discrimination context. See Craddock v. Lincoln Nat'I Life Ins. Co., 533 F. App'x 333, 336 (4th
6

Cir. 2013) ("InSwierkiewicz, the Supreme Court rejected the notion that 'the requirements for
estabUshing a prima facie case under McDonnell Douglas also apply to the pleading standard
that plaintiffs must satisfy in order to survive a motion to dismiss.'").

Instead, the complaint must satisfyFederal Rule of Civil Procedure 8(a)(2), which

requires "a short and plainstatement of the claim showing thatthe pleader is entitled to relief"
Fed. R. Civ. P. 8(a)(2). Stateddifferently, the complaint must allegefacts '"that raise a right to

relief above the speculative level'" that an employee suffered an adverse employment action
because of the employee's membership in a protected class. Coleman v. Md. Court ofAppeals,
626 F.3d 187,190 (4th Cir. 2010) (quoting Twombly, 550 U.S. at 555). Courts, nonetheless,

"may lookto the requirements of a primafacie case as a guide in assessing the plausibility of
plaintiffs claimfor relief" Craft v. Fairfax Cty., No. I:16cv86, 2016 WL 1643433, at *4 (E.D.
Va, Apr. 26,2016) (citing Coleman, 626 F.3d at 190); see also McCleary-Evansv. Md. Dept. of
Trans., 780 F.3d 582, 585 (4th Cir. 2015) (applying prima facie case as guide in motion to

dismiss).^

^Tension appears to exist inthe Fourth Circuit regarding how the Twomblyllqbal
pleading standard comports with earlier Supreme Court precedent in Swierkiewicz. In
Swierkiewicz, the Supreme Court explainedthat courts should not transposethe evidentiary
standard of McDonnellDouglas "into a rigid pleading standard for discrimination cases."
534 U.S. at 512. The Fourth Circuit has confirmed, as good law, that aspect ofSwierkiewicz.
McCleary-Evans, 780 F.3d at 585.
In McCleary-Evans, a Title VII case, an African-American woman alleged that a state
agency discriminated against her by refusing to hire her. In support, she stated that she was a
qualified applicant and that she had been denied a position in favor of someone who was white.
Id. at 583-84. Contrary to the facts here, she did not offer any comparison between herself and
the individual hired. Id. at 584. In a 2-1 decision, the Fourth Circuit found that the plaintiffs
allegations were fatally conclusory and lacked additional facts to support a reasonable inference
that the decisionmakers were motivated by race.
Despite acknowledging Swierkiewicz when so holding, the majority in McCleary-Evans
required plaintiff to assert a ^'plausible claim for relief" Id. at 587. In a dissenting opinion, the
Honorable James A. Wynn, Jr., suggested that the majority ignored the thrust ofSwierkiewicz—
"that discriminatory intent need not be pled with specific facts." See id. at 592 (Wynn, J.,

B.

Georges Plausibly Alleges a Violation of the ADEA

Dominiontakes issue with Georges's alleged failure to plead facts that directly evince

age discrimination. Georges, on the otherhand, contends that she has pleaded morethan enough
facts to make out an age discrimination claim because the Complaint, if true, establishes a prima
facie case under the McDonnell Douglas standard. But Georges's response inadequately
addresses this record because, in order to survive a motion to dismiss, she need not allege facts

establishing a prima facie case of age discrimination. See Craddock, 533 F. App'x at 336
(explaining that "[t]his is at least in part because 'if a plaintiff is able to produce direct evidence
of discrimination, he may prevail without proving all the elements of a prima facie case,' which
is an indirect method of proof (citation omitted)); see also McCleary-Evans, 780 F.3d at 585.
Rather, applying the familiar standard of Twombly and Iqbal, George's Complaintmust allege
dissenting). Noting that the Fourth Circuit could not overturn either Swierkiewicz or Iqbal, Judge
Wynn advocated an approach that more closely tracked Swierkiewicz, especially given the facts
those cases examined:

We are therefore confronted with two Supreme Court cases having apparent
relevance to the case before us. One of these cases, Swierkiewicz, involves a Title

VII plaintiff who alleged that his employer wrongfully terminated him due to his
national origin. The other, Iqbal, involves a suspected terrorist who alleged that
he was mistreated pursuant to an unconstitutional policy instituted by the United
States Attorney General in conjunction with the Director of the Federal Bureau of
Investigations.
I have little difficulty deciding which case has greater
applicability to the run-of-the-mill employment discrimination case before us.
Id.\ see also McCauley v. City ofChicago, 671 F.3d 611, 628-29 (7th Cir. 2011) (Hamilton, J.,
dissenting) ("[W]e must take care not to expand Iqbal too aggressively beyond its highly unusual
context—allegations aimed at the nation's highest-ranking law enforcement officials based on
their response to unprecedented terrorist attacks on the United States homeland—^to cut off
potentially viable claims.").
Although this Court does not follow the approach favored by Judge Wynn's dissent,
mention of it helps frame the difficulty of applying the pleading standard of Twombly and Iqbal
to cases in which "[t]he requisite proof of the defendant's discriminatory intent is often in the
exclusive control of the defendant, behind doors slammed shut by an unlawful termination."
McCleary-Evans, 780 F.3d at 592 (Wynn, J., dissenting). The Court also notes the obvious: that
any motion to dismiss considered by a district judge must consider and apply all binding
Supreme Court precedent.
8

facts "'that raise a rightto reliefabove the speculative level'" that she suffered an adverse

employment action because o/her membership in a protected class. Coleman, 626 F.3d at 190
(quoting Twombly, 550 U.S. at 555).

These differing standards matterlittlehere because Georges's allegations that would

establish a prima facie caseof age discrimination, albeit closely in each instance, also would
"raise a rightto reliefabove the speculative level." Id. For that reason, the Court finds that
Georges states a claim for age discrimination uponwhich reliefcould be granted. The Court will
deny the Motion to Dismiss.

First, the Complaint alleges that, at the time of termination, Georges was 51 years old.
Thus, Georges claimsthat she was forty years or older and a memberof the class of people

protected by the ADEA. Second, by pleading that her supervisors at Dominion orallyterminated
her employment, Georges contends that she suffered adverse employment action. Third, by
asserting that she had received only positive feedback prior to and at the time of termination,
Georges sufficiently alleges that she was performing her job duties at a level that met

Dominion's legitimate expectations during her brief period of employment. And fourth, Georges

pleads that she was replaced by ayounger, less-experienced person. {See Compl. ^ 20.)^
Georges specifically alleges that her replacement "was less than 40 years old,... had little or no

^Georges, through her attorneys, asserts Paragraph 20 ofthe Complaint "oninformation
and belief" "A plaintiff is generallypermitted to plead facts based on 'information and belief if
such plaintiff is in a position of uncertainty because the necessary evidence is controlled by the
defendant." Ridenour v. Multi-Color Corp., 147 F. Supp. 3d 452, 456 (E.D. Va. 2015) (citing
Raub V. Bowen, 960 F. Supp. 2d 602, 615 (E.D. Va. 2013) (noting that although "information
and belief pleadings are "tenuous at best," such practice is permitted under Rule 8(a) when
relying "on second-hand information to make a good-faith allegation of fact")). Notably,
Georges asserts few paragraphs "on information and belief and Paragraph 20 pertains to a fact
largely controlled by Dominion. The Court, accordingly, sees no basis for rejecting that
allegation or for failing to view the information alleged favorably to Georges when considering
the Motion to Dismiss.

experience in the relevant areasof the position, and was paid less." {Id.

27.) In view of that

allegation, there is no "'obvious alternative explanation' that the decisionmakers simply judged
[the person] hired to be more qualified and better suitedfor the position[]." McCleary-Evans,

780 F.3d at588 (quoting Iqbal, 556 U.S. at 678).'
The Complaintbefore this Court does not outline a staggeringlitany of facts in support of
Georges's ADEA claim. But at this stage, it need not. The facts alleged, considered together, as

true, and viewed in the light most favorable to Georges, plausibly "'raise a right to relief above
the speculative level'" that Georges suffered an adverse employmentaction because of her
membership in a protected class. Coleman^ 626 F.3d at 190 (quoting Twombly, 550 U.S. at 555).
The Court will deny the Motion to Dismiss.
IV. Conclusion

For the foregoing reasons, the Court will deny Dominion's Motion to Dismiss. (ECF
No. 9.) An appropriate Order shall issue.

M.I

United Sta

iul

[a

L^ucjs^

esMj ij jtrictJudge

Date:

Richmond, Virginia

^As noted earlier, inMcCleary-Evans, the plaintiff did not offer any comparison between
herself and the individual who was hired. 780 F.3d at 584.
10