Barr v. Virginia Alcohol Beverage Control (VABC) et al

Filing 17

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 07/28/2017. Copy mailed to pro se plaintiff. (tjoh, )

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

LESLEY BARR,
Plaintiff,

V.

)
)
)
)

)

VIRGINIA ALCOHOL BEVERAGE
CONTROL, e/flr/.,
Defendants.

Civil Action No. 3:17-CV-326-HEH

)
)
)
)
)

MEMORANDUM OPINION

(Granting Defendants' Motion to Dismiss)

Pro se Plaintiff Lesley Barr ("Plaintiff) brings this civil rights action alleging that
she was unlawfully discriminated against when she was fired from her position as a sales
associate with the Virginia Alcohol Beverage Control ("ABC").
This matter is before the Court on Defendants ABC, Kate Sheehan, and Beverly

Anderson's (collectively, the "Defendants") Motion to Dismiss Pursuant to Federal Rules

ofCivil Procedure 12(b)(1) and 12(b)(6) (ECF No. 9), filed on June 21,2017.'
' The Office ofthe Attorney General of Virginia has entered anappearance as to all three
Defendants. However, before that happened, Anderson filed an Answer pro se. (ECF No.7.)
Subsequently, through her attorney, Anderson has attempted to join the instant Motion. (ECF
No. 12.) The Court acknowledges Rule 12(b)'s requirement that "[a] motion asserting any of
these defenses must be made before pleading if a responsive pleading is allowed." Fed. R. Civ.
P. 12(b). However, because Plaintiff is proceeding informa pauperis, her Complaint is subject
to the requirement that "the court shall dismiss the case at any time if the court determines that
... the action ... fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2).
Accordingly, notwithstanding her Answer, the Court has the authority to dismiss this action as to
Anderson. See Eriline Co. S.A. v. Johnson^ 440 F.3d 648, 656 (4th Cir. 2006) ("in both habeas
corpus and in forma pauperis proceedings, the district courts are charged with the unusual duty
of independently screening initial filings, and dismissing those actions that plainly lack merit").

Defendants included an appropriate Roseboro Notice with their Motion, as

required by Local Civil Rule 7(K) and the Fourth Circuit's decision in Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975).

All 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 it, 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 will dismiss the Complaint in its entirety.
1. 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) (citing Mylan 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 of Plaintiffs Complaint. Viewed through this lens, the facts are as follows.
Plaintiff is an openly gay African American woman. {See Compl.

23-25, ECF

No. 4.) ABC hired her as a sales associate on October 4, 2010, and promoted her to lead

sales associate on April 26,2013. {Id. H5.) She worked at store number 187 in
Richmond, Virginia, and earned $10.69 per hour. {Id.

5, 8.) While employed with

ABC, Plaintiff applied for, but never received, any other promotions. {Id. H6.)

Nonetheless, she regularly performed managerial functions at her store. {Id. 1[8.)
Plaintiff alleges that a white female co-worker "was promoted to manager despite the fact

that she had not worked for [ABC] longer than [Plaintiff] nor had she performed
managerial functions as [Plaintiff] had." {Id. ^ 7.)

In 2015, Anderson began working as a sales associate at store 187. (Jd. til.)
Plaintiff claims that Anderson continuously "preached" her Christian beliefs to other

employees. {Id. ^ 12.) Anderson also allegedly gave Plaintiff "inappropriate looks" and
made comments under her breath about Plaintiffs sexual orientation. {Id.)

Anderson "communicated her feelings" about Plaintiff to Sheehan, the ABC

regional manager. {Id. 113.) Sheehan, who Plaintiff claims is "pro-White," then
directed the store manager to fire Plaintiff. {Id.)

ABC fired Plaintiff on March 18, 2016. {Id. U8.) Its justification was that

Plaintiff had abused "discretionary breaks during working hours." {Id. H11.) Plaintiff
alleges that this is merely pretext, because it was "conduct that every employee at Store

187 engaged in on a daily basis," yet no one else was fired or disciplined. {Id. fl 10-11.)
Plaintiff attempted to challenge her firing with ABC, but it denied the hearing that
she requested. {Id, 114.) Thus, on September 12, 2016, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission ("EEOC"). {Id. 1
15.) The EEOC charge alleged that ABC discriminated against Plaintiff because of her
race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et
seq. ("Title VII"). (ECFNo. 10-1.) (EEOC File 15, ECF No. 14-1.) On January 26,
2017, the EEOC issued a ninety-day right to sue letter, which Plaintiff received in the

mail January 28, 2017. (Compl. 1116; EEOC File 5.) Plaintiff then filed this action on
April 27, 2017.

The Complaint includes an array of federal and state causes of action. As best the
Court can discern, Plaintiff raises twelve discrete claims: retaliation, race discrimination,

gender discrimination, sexual orientation discrimination, and hostile work environment,
all in violation of Title VII; wage discrimination and retaliation, in violation of the Equal
Pay Act, 29 U.S.C. § 206(d) ("EPA"); violations of 42 U.S.C. §1983,42 U.S.C.
§1985(3), and 42 U.S.C. §1986; violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution; and common law intentional infliction of
emotional distress.
II. LEGAL STANDARDS

a. 12(b)(1)

A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(1)
challenges the court's jurisdiction over the subject matter of the complaint. In resolving
motions to dismiss under Rule 12(b)(1), a court may consider affidavits, depositions, or

live testimony without converting the motion into one for summary judgment. Williams
V. United States, 50 F.3d 299, 304 (4th Cir. \99S)\ Adams v. Bain, 697 F.2d 1213, 1219

(4th Cir. 1982). Furthermore, within the context of a Rule 12(b)(1) motion to dismiss, a
court may resolve factual questions to determine whether it has subject-matter

jurisdiction. Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986), overruled on
other grounds, Sheridan v. United States, 487 U.S. 392 (1988).

Because subject-matter jurisdiction implicates a federal court's constitutional
power to act, it may be raised at any time either by the court sua sponte or by one of the
parties. Plyler v. Moore, 129 F.3d 728, 731 n,6 (4th Cir. 1997). The burden of

demonstrating subject-matter jurisdiction resides with the Plaintiff. Richmond,

Fredericksburg & Potomac R.R. Co. v. UnitedStates, 945 F.2d 765, 768 (4th Cir. 1991).
b. 12(b)(6)

"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 showing that 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.'" BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conleyv.
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." Twombly, 550 U.S. at 555 (citations

omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above
the speculative level" to one that is "plausible on its face," rather than merely
"conceivable." Id at 555, 570.

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).
c. Liberal Construction of the Pro Se Plaintiffs Complaint

Although courts are not required to "conjure up questions never squarely

presented to them ... [or] construct full blown claims from sentence fragments,"

Beaudett v. City ofHampton, 11S F.2d 1274, 1278 (4th Cir. 1985), pro se complaints
must be "liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle V. Gamble, 429 U.S. 97, 106 (1976)). However "inartfully pleaded,"pro se
complaints must be held to less stringent standards than those drafted by skilled lawyers.
Id
III. ANALYSIS

Employing the standards of review presented and allowing the pro se Plaintiff
broad latitude in the construction of her Complaint, the Court will address all of her
claims in turn.

a. Subject-Matter Jurisdiction
As a threshold matter, the Court must address whether it has subject-matter

jurisdiction to hear this case. Defendants argue that the Court lacks subject-matter
jurisdiction over Plaintiffs Title VII hostile work environment and retaliation claims
because they were not alleged in her EEOC charge. They also contend that the Eleventh
Amendment to the United States Constitution prevents the Court from asserting subject-

matter jurisdiction over Plaintiffs claim of intentional infliction of emotional distress.
The Court agrees with Defendants and will dismiss those claims for lack of subjectmatter jurisdiction.
1. Title VII Retaliation and Hostile Work Environment Claims

To have standing to bring suit under Title VII, a plaintiff must exhaust her
administrative remedies by filing a discrimination charge with the Equal Employment

Opportunity Commission ("EEOC"). Bryant v. BellAtl Md., Inc., 288 F.3d 124, 132

(4th Cir. 2002); Smith v. First Union Nat'I Bank, 202 F.3d 234, 247 (4th Cir. 2000). The
purpose of this requirement is to put an employer on notice of the charge, permit the
EEOC to investigate, and allow the parties to resolve the dispute without litigation. See
Miles V. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005). "An administrative charge of

discrimination does not strictly limit a Title VII suit which may follow; rather, the scope

of the civil action is confined only by the scope of the administrative investigation that

can reasonably be expected to follow the charge of discrimination." Bryant 288 F.3d at
132 (quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981).)
In this case, there is no indication that Plaintiffs EEOC charge could have

reasonably led to an investigation concerning a hostile work environment or retaliation.
On its face, the EEOC charge only alleges race and sex discrimination. (EEOC File 15.)
And nothing in Plaintiffs EEOC file indicates otherwise. {See generally id.)
In her EEOC charge and supporting documents. Plaintiff made no allegations that
Defendants retaliated against her. Significantly, Plaintiffs EEOC charge included no
facts that would indicate that she engaged in any protected activity to base a retaliation

claim. {Id', see Coleman v. Maryland Court ofAppeals, 626 F.3d 187, 190 (4th Cir.
2010) (requiring engagement in a protected activity to recover for Title VII retaliation).)
Likewise, Plaintiff alleged no conduct in her EEOC charge that could be
considered to have created a hostile work environment. (EEOC File 15.) To rise to the

level of a hostile work environment, a plaintiff must be subject to harassment that is

"sufficiently severe or pervasive to alter the conditions of employment and create an

abusive atmosphere." Bass v. E.L DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003). The only facts in the EEOC file that could indicate the existence of a hostile work
environment are that Anderson gave Plaintiff inappropriate looks and said things about
Plaintiff under her breath. (EEOC File 31.) However, this is not the type of severe
conduct necessary to establish a hostile work environment. Therefore, the scope of the
EEOC investigation could not have been reasonably expected to expand to include hostile
work environment.

Accordingly, Plaintiffs causes of action for retaliation and hostile work
environment in violation of Title VII will be dismissed for lack of subject-matter

jurisdiction because Plaintiff failed to exhaust her administrative remedies.
2. Intentional Infliction of Emotional Distress

The Eleventh Amendment to the United States Constitution "bar[s] suits brought

by a citizen against his own state." Equity In Athletics, Inc. v. Dep't ofEduc., 639 F.3d
91, 107 n.l2 (4th Cir. 2011) (citing Bragg v. W. Va. CoalAss'n, 248 F.3d 275, 291 (4th
Cir. 2001)). While the Commonwealth has waived its sovereign immunity through the
Virginia Tort Claims Act ("VTCA"), the VTCA is not a waiver of Virginia's Eleventh
Amendment immunity. McConnell v. Adams, 829 F.2d 1319, 1329 (4th Cir. 1987).
Thus, while Virginia has consented to suit in Virginia courts under the VTCA, such suit
may not be brought in a federal court.
Consequently, this Court does not have subject-matter jurisdiction over and will
dismiss Plaintiffs state-law tort claim of intentional infliction of emotional distress as to

ABC.^ See Beckham v. Nat'lR.R. Passenger Corp., 569 F. Supp. 2d 542, 547 (D. Md.
2008).
b. Title VII Discrimination Claims

As an initial matter, the Court concludes that it has subject-matter jurisdiction over
Plaintiffs Titile VII discrimination claims because she included them in her EEOC

charge. (See generally EEOC file.)

To state aprimafacie case of discrimination under Title VII, a plaintiff must

allege "(1) membership in a protected class; (2) satisfactory job performance; (3) adverse

employment action; and (4) different treatment from similarly situated employees outside

the protected class." Coleman v. Maryland CourtofAppeals, 626 F.3d 187, 190 (4th Cir.
2010), affd 132 S. Ct. 1327 (2012).

Plaintiff makes the conclusory allegations that Defendants discriminated against

her based on her sexual orientation, race, and gender.^ But, she has not pleaded a
plausible claim of discrimination under any theory.

The first prong of the test disposes of Plaintiff s sexual orientation discrimination
claim. "It is explicitly the law of the Fourth Circuit that Title VII does not protect against
^Tothe extent thatPlaintiff is also attempting to assert an intentional infliction of emotional
distress claim against Sheehan and Anderson in their individualcapacities, the Complaint fails to
state a plausible claim. To plead an actionable cause of actionfor intentional infliction of
emotional distress, Plaintiff must allege that the emotional distress was extreme and so severe
that no reasonable person could be expected to endure it. Harris v. Kreutzer, 271 Va. 188, 205
(2006). The Complaint's conclusorystatementthat Plaintiff "suffered extreme emotional
distress" falls short of the mark. (Compl. 126.)

^The Fourth Circuit has been clear that"Title VII... foreclose[s] individual liability." Lissau v.
Southern Food Serv., 159 F.3d 177, 180 (4th Cir, 1998). Therefore, to the extent that Plaintiff
attempting to assert her Title VII claims against Sheehan and Anderson in their individual
capacities, those claims will be dismissed with prejudice.

discrimination based on sexual orientation." Hinton v. Virginia Union Univ., 185 F.

Supp. 3d 807, 814, (E.D. Va. 2016) (citing Murray v. N. Carolina Dept. ofPub. Safety,
611 Fed. App'x 166 (4th Cir. 2015); Wrightson v. Pizza Hut ofAm., Inc., 99 F.3d 138,
143 (4th Cir. 1996) ("Title VII does not afford a cause of action for discrimination based

upon sexual orientation")). Because Plaintiffs status as a lesbian is not protected, she
has not, and cannot, state a Title VII claim based on sexual orientation discrimination.

The Court will dismiss her sexual orientation discrimination claim with prejudice."*
Plaintiffs allegations of race and gender discrimination are deficient as well.
While Plaintiff has adequately pleaded membership of a protected class as an African
American female, she has failed to provide sufficient facts to satisfy the second or fourth

prongs. The Complaint includes no facts that would indicate the Plaintiff had satisfactory
job performance. To the contrary, Plaintiffalleges that "every employee"—^which
presumably includes her—^regularly engaged in conduct that violated the ABC's

discretionary breakpolicy. (Compl.

10-11.) Additionally, while Plaintiffalleges that

she was the only employee disciplined for that conduct, she omits any facts that would
indicate that the other, non-disciplined employees were outside the protected class. Both
of these flaws are fatal to her discrimination claims.

Even when construing pro se Plaintiffs Complaint liberally and viewing it in the

light most favorable to her, the Court concludes that she has failed to state a plausible
claim for discrimination under Title VII. Therefore, Plaintiffs claim for sexual

^Even if Title VII did protect against sexual orientation discrimination. Plaintiff still fails to state
a plausible claim. She has not pleaded any facts indicating satisfactory job performance or that
those treated differently were outside the protected class.
10

orientation discrimination will be dismissed with prejudice and her claims for race and
gender discrimination will be dismissed without prejudice.
c. EPA Claims

In addition to her Title VII claims, Plaintiff alleges that Defendants discriminated
and retaliated against her in violation of the EPA.

To establish a plausible claim of wage discrimination under the EPA, a plaintiff
bears the burden of showing: "(1) that her employer has paid different wages to

employees of opposite sexes; (2) that said employees holdjobs that require equal skill,
effort, and responsibility; and (3) that such jobs are performed under similar working

conditions." Brinkleyv. Harbour Recreation Club, 180 F.3d 598, 613 (4th Cir. 1999)

(citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)), overruledon other

grounds byDesert Palace v. Costa, 539 U.S. 90 (2003). This disparity is typically shown
by a "factor-by-factor" comparison to a specific male comparator. Houck v. Va,
Polytechnic Inst. and State Univ., 10 F.3d 204, 206 (4th Cir. 1993).

In her Complaint, Plaintiff alleges that Defendants violated the EPA "by not

giving her a raise to compensate her for the duties she was performing where male
employees either performing the same tasks, or less, were paid at a higher rate." (Compl.
127.) However, conspicuously absent from the Complaint are any facts relating to

Plaintiffs pay, job requirements, or working conditions. She has also failed to plead a
male comparator. See Stragv. Ed. ofTrustees, Craven Cmty. Coll., 55 F.3d 943, 948 (4th
Cir. 1995) (requiring plaintiffs in EPA cases to "identify a particular male

'comparator'"). Thus, Plaintiff has failed to state a plausible wage discrimination claim.

11

Plaintiffs EPA retaliation claim similarly fails. To properly state a retaliation

claim under the EPA, a plaintiff is required to show: (1) that she engaged in a protected
activity; (2) that Defendants took some adverse employment action against her; and (3)

that a causal connection existed between the protected activity and the adverse action.^
Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007); Williams v.
Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) (citing Ross v. Commc'ns Satellite
Corp., 759 F.2d 355, 365 (4th Cir. 1985)).

Plaintiff does not indicate what adverse employment action constitutes the basis
for her EPA retaliation claim. But even if the Court assumes that Plaintiff is bringing this

claim based on her denial of promotions and raises and her eventual termination, she still

fails to state a plausible retaliation claim. The Complaint makes no mention of Plaintiff
engaging in a protected activity, much less any causal connection to an adverse
employment action. Lacking any factual foundation. Plaintiffs cause of action for
retaliation under the EPA is preciselythe type of claim prohibited by Twombly and Iqbal.

Accordingly, the Courtwill dismiss Plaintiffs EPA discrimination and retaliation
claims without prejudice.
d. Claims Under 42 U.S.C. §§ 1983, 1985(3), 1986

Plaintiff next alleges that Defendants "individually and collectively, jointly and
severally, conspired to, and did, deprive [Plaintiff] of rights guaranteed under 42 U.S.C.
sections 1983, 1985(3) and 1986 because she is a lesbian." (Compl. ^ 29.) However, the
^The Court observes thatthe same standard is utilized for assessing both EPA andTitle VII retaliation
claims. See Kennedy v. Va. Polytechnic Inst. & State Univ., 781 F. Supp. 2d 297,303 (W.D. Va. 2011);
Harrison v. Principi, Civil Action No. 3:03-1398, 2005 WL 4074516, at *7 (D. S.C. Aug. 31,2005).
12

Court finds that she has failed to state a claim under any of those provisions.
1. §1983

Section 1983 provides a mechanism for seeking redress for an alleged deprivation

of a litigant's federal constitutional and federal statutory rights by persons acting under

color of state law.^ Importantly, § 1983 "is not itself a source ofsubstantive rights, but a
method for vindicating federal rights elsewhere conferred by those parts of the United
States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S.

137, 144 n.3 (1979).

Here, the Complaint fails to state a plausible §1983 claim because it does not

reference any federal constitutional or statutory right of which Plaintiff has been

deprived.' Accordingly, the Court will dismiss Plaintiffs § 1983 claim without
prejudice.
2. § 1985(3)

To state a claim under 42 U.S.C. § 1985(3), a plaintiff must plead:

(1) a conspiracy of two or more persons, (2) who are motivated by a
specific class-based, invidiously discriminatory animus to (3) deprive the
plaintiff of the equal enjoyment of rights secured by the law to all, (4) and
which results in injury to the plaintiff as (5) a consequence of an overt act
committed by the defendants in connection with the conspiracy.
Thomas v. The Salvation Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016) (quoting

^Relief through 42 U.S.C. § 1983 is limited to public officials sued in their individual capacities.
WillV. Michigan Dept. ofState Police, 491 U.S. 58 (1989); Goodmon v. Rockefeller, 947 F.2d
1186-87 (4th Cir. 1991). Accordingly, Plaintiff cannot recover under § 1983 from ABC or from
Sheehan or Anderson in their official capacities.

^As a separate cause of action, Plaintiff alleges a procedural due process violation. While 42
U.S.C. § 1983 is the appropriate vehicle to bring that claim. Plaintiff has pleaded them
independently. The Court will address Plaintiffs due process allegations infra.
13

Simmons v. Poe, 47 F.3d 1370, 1376, 1995 WL 82900 (4th Cir. 1995)). The Fourth

Circuit has held that to properly allege a conspiracy, Plaintiff "must show an agreement

or a meeting of the minds by [the] defendants to violate the [plaintiffs] constitutional

rights." ^

Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (quoting

Simmons 47 F.3d at 1377.) (alterations in original). Thus, a § 1985(3) claim is

insufficient if "the purported conspiracy is alleged in a merely conclusory manner, in the
absence of concrete supporting facts." Id. (quoting Simmons 47 F.3d at 1377.)
Here, Plaintiffs § 1985(3) claim fails because her allegations are insufficient to

show an agreement or meeting of the minds by Defendants. Plaintiffhas pleaded only
that Anderson "communicated her feelings" to Sheehan who, "being pro-White,
instructed the store manager" to fire Plaintiff. (Compl. H13.) Without any concrete

facts, the Complaint simply fails to showthat Anderson and Sheehan conspired to
discriminate against Plaintiff because she is a lesbian.

Because the conspiracy is alleged in a merely conclusory manor, the Court will
dismiss Plaintiffs § 1985(3) claim without prejudice.
3. § 1986

Plaintiff also brings a claim under 42 U.S.C. § 1986. That provision establishes
liability for any person who has prior knowledge of a § 1985 conspiracy and has the
ability to prevent it, yet fails to do so. In this case, because Plaintiff has failed to state a
claim under 42 U.S.C. § 1985, her § 1986 claim necessarily fails as well.

Additionally, § 1986 has an express one year statute of limitations, providing that
"no action under the provisions of this section shall be sustained which is not commenced
14

within one year after the cause of action has accrued." 42 U.S.C. § 1986. Plaintiff

alleges that she was fired on March 18, 2016, but she did not initiate this action until

April 27,2017. As such, her § 1986 claim is time barred and will be dismissed with
prejudice.
e. Due Process Claim

Lastly, Plaintiff appears to allege that Defendants violated her procedural due

process rights by firing her without prior notice or ahearing. However, because Plaintiff
had no property interest inher continued employment, this claim fails.

"The procedural safeguards encompassed by the due process clause extend to
[Plaintiffs] continued employment only ifshe had aproperty interest in that

employment." Pittman v. Wilson County, 839 F.2d 225, 226 (4th Cir. 1988) (citing Bd. of
Regents ofState Colleges v. Roth, 408 U.S. 564, 569 (1972)). And "the sufficiency ofthe
claim of entitlement must be decided by reference to state law." Id. (quoting Bishop v.

Wood, 426 U.S. 341, 344 (1976)). The Virginia Code provides grievance procedures for
the Commonwealth's employees subjected to formal disciplinary proceedings, including
dismissals. See Va. Code Ann. § 2.2-3004. However, as authorized by statute, the

Governor, through the Director of the Virginia Department ofHuman Resource

Management, has expressly excluded hourly employees from participation inthe
Commonwealth's grievance procedures. See Va. Code Ann. §§ 2.2-2905(11), 2.2-1200;

Va. Dep't ofHuman Res. Mgmt., Pol. &Procd. Manual, Pol. No. 2.20, Types of
Employment (2007).

In this case, Plaintiffhas pleaded that she was an hourly employee of ABC,
15

earning $10.69 atthe time ofher termination. The fact that Plamtiff regularly performed

managerial functions ather store has no effect on her employment status under Virginia
law. As an at-will employee, Plaintiff had no property interest in her contmued

employment with the ABC. Thus she was not entitled to grievance proceedings relating
to herfiring. The Court will dismiss herdue process claim with prejudice.
IV. CONCLUSION

Based onthe forgoing, this case will be dismissed in its entirety. Plaintiffs sexual
orientation discrimination claim under Title VII, her 42 U.S.C. § 1986 claim, and her

procedural due process claim will all be dismissed with prejudice. All ofher other claims
will be dismissed without prejudice.

Anappropriate Order will accompany this Memorandum Opinion.

/s/

Henry E. Hudson
United States District Judge

PaterTtfL 2.y2.O/0
Richmond, VA '

16