McCurdy v. Red Onion State Prison
Filing
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OPINION AND ORDER GRANTING as to Count II, DENYING as to Counts I and III, and DENYING as moot as to the demand for punitive damages in re: 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge James P. Jones on 12/7/16. (flc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
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THOMAS McCURDY,
Plaintiff,
v.
VIRGINIA DEPARTMENT OF
CORRECTIONS,
Defendant.
Case No. 2:16CV00017
OPINION AND ORDER
By: James P. Jones
United States District Judge
Joshua Erlich, Benjamin W. Owen, Davia Craumer, and Katherine L.
Herrmann, The Erlich Law Office, PLLC, Arlington, Virginia, for Plaintiff; Ryan
Spreague Hardy, Assistant Attorney General, and Sydney E. Rab, Senior Assistant
Attorney General, Richmond, Virginia, for Defendant.
The plaintiff in this case asserts claims of race-based discrimination,
harassment, and retaliation under Title VII of the Civil Rights Act of 1964 and 42
U.S.C. § 1981. Because I find that the Amended Complaint fails to state a viable
claim under § 1981, I will grant the defendant’s Motion to Dismiss as to Count II.
I will deny the Motion to Dismiss as to Counts I and III, the Title VII claims.
I.
The Amended Complaint alleges the following facts, which I must accept as
true for purposes of deciding the Motion to Dismiss.
The plaintiff, Thomas McCurdy, is a black man who lives in Wise County,
Virginia, and was employed by the Virginia Department of Corrections (“VDOC”)
from April, 2012, until May, 2014. McCurdy worked as a Corrections Officer at
Red Onion State Prison (“Red Onion”) in Pound, Virginia.
During his
employment, the use of racial slurs by non-black officers was common and
accepted.
Americans.
Non-black officers made race-related jokes targeting AfricanCertain unidentified non-black officers stated and implied that
McCurdy and other black officers were gang members, were “the same as
inmates,” and could not be trusted. (Am. Compl. ¶ 16, ECF No. 6.) Non-black
officers told McCurdy they would not protect him from violence by inmates. The
conditions of employment for black officers included a lack of safety and security.
In late 2013, McCurdy complained to Red Onion’s Director of Human
Resources, Renee Conley, about the use of racial slurs and what he perceived as a
pervasive hostile work environment.
VDOC did not investigate McCurdy’s
complaints. In March 2014, McCurdy attended a meeting in which Emily Swords
asked whether the Red Onion staff would like to see any changes made at Red
Onion. McCurdy responded by complaining about the use of racial slurs and jokes
about black people. Officers T. Patrick, C. Rose, Cooley, and C. Smith attended
the meeting. The use of racial slurs and telling of race-related jokes persisted
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following the meeting. According to McCurdy, VDOC still did not investigate the
complaints.
McCurdy also voiced his concerns to Major Arville Galiher, a supervisor at
Red Onion. Galiher dismissed the claims, stating that race-based jokes happen
everywhere. VDOC again took no action.
On May 16, 2014, McCurdy, who is a smoker, accidentally brought a
cigarette lighter into the prison. He was aware that bringing a cigarette lighter into
the prison was a violation of VDOC regulations, and when he discovered the
lighter in his pocket, he immediately approached Warden Randall Mathena to
determine how best to address the situation. Mathena told McCurdy he could
either resign or be fired. McCurdy resigned.
Prior to his resignation, McCurdy had received no warnings; he had an
excellent performance and disciplinary history. McCurdy believes that the VDOC
had been looking for a reason to terminate him in retaliation for his complaints
about “the intense and pervasive hostile work environment” at Red Onion. (Id. at ¶
37.)
In other words, McCurdy alleges that the minor infraction of bringing a
lighter into the prison was used as a pretext, and VDOC in fact terminated his
employment because of his race and in retaliation for his complaints.
On June 9, 2014, the Virginia Employment Commission (“VEC”) held a
hearing to determine whether McCurdy was eligible to receive unemployment
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compensation. At that hearing, Conley stated that other employees at Red Onion
had brought lighters into the prison but were not fired. She indicated that she did
not know why VDOC terminated McCurdy when it had not terminated others.
Other infractions, including mistakenly firing a weapon and entering the prison
with chewing gum hidden in a sock, did not result in any discipline or resulted in
only short suspensions.
McCurdy made a timely charge of race-based discrimination and retaliation
with the Equal Employment Opportunity Commission (“EEOC”), and on March
30, 2016, the EEOC issued McCurdy a Notice of Right to Sue. He initiated this
action within ninety days of his receipt of the Notice of Right to Sue. McCurdy
asserts a claim of race-based discrimination and harassment under Title VII (Count
I), a claim of race-based discrimination and harassment under 42 U.S.C. § 1981
(Count II), and a claim of retaliation under Title VII (Count III).
VDOC has moved to dismiss the Amended Complaint for failure to state a
claim upon which relief can be granted. The Motion to Dismiss has been fully
briefed and is now ripe for decision. 1
1
I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
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II.
In order to survive a motion to dismiss under Rule 12(b)(6), a “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.”
Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Further, “the tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”
Ashcroft, 556 U.S. at 678.
“While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. at 679.
In the context of employment discrimination claims, “a plaintiff is not
required to plead facts that constitute a prima facie case” in order to survive a
motion to dismiss. Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir.
2010) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002)).
Nevertheless, a complaint’s “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Coleman, 626 F.3d at 190 (quoting Twombly,
550 U.S. at 555).
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A plaintiff claiming unlawful discrimination under Title VII who does not
offer direct evidence of discriminatory intent has the burden of establishing that:
(1) he is a member of a protected class; (2) he was qualified for his position and his
performance was satisfactory; (3) despite his qualifications, he suffered an adverse
employment action; and (4) he was replaced by an individual outside of the
protected class.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
To prevail on a claim of a hostile work environment under either Title VII or
§ 1981, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is
based on the plaintiff’s . . . race; (3) which is sufficiently severe or pervasive to
alter the plaintiff’s conditions of employment and to create an abusive work
environment; and (4) which is imputable to the employer.” Boyer–Liberto v.
Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citation omitted).
Section 1981 states,
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.
42 U.S.C. § 1981(a). The exclusive remedy for violation of rights guaranteed by §
1981 is 42 U.S.C. § 1983. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733
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(1989); Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). Section 1983
provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege that he
was ‘deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.’” Thomas
v. Salvation Army S. Territory, No. 14-2214, 2016 WL 6595949, at *3 (4th Cir.
Nov. 8, 2016) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50
(1999)). The plaintiff must allege that the one who deprived him of his rights is a
“person.” See 42 U.S.C. § 1983; Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989).
To adequately plead a claim of retaliation under Title VII, a plaintiff must
allege three elements: “1) the employee engaged in protected activity; 2) the
employer took adverse employment action against the employee; and 3) a causal
connection existed between the protected activity and the adverse action.” Munday
v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997) (citation
omitted).
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III.
In support of its Motion to Dismiss, VDOC first contends that McCurdy
cannot recover punitive damages from a state agency.
McCurdy has filed a
Stipulation of Partial Dismissal stating that he voluntarily dismisses with prejudice
his claims for punitive damages. Therefore, as to this issue, I will deny the Motion
to Dismiss as moot.
VDOC next argues that Count II must be dismissed because a state agency is
not a “person” subject to suit under § 1983. VDOC further contends that the
Eleventh Amendment bars any claim for damages against it. McCurdy counters
that he is entitled to recover damages pursuant to 42 U.S.C. § 1981a and that
Congress properly abrogated states’ sovereign immunity when it enacted Title VII.
As a general principle, “it is well settled that the Eleventh Amendment bars
a suit by private parties to recover money damages from the state.” Huang v. Bd.
of Governors of Univ. of N.C., 902 F.2d 1134, 1138 (4th Cir. 1990). Sovereign
immunity is not absolute, however. See Alden v. Maine, 527 U.S. 706, 754-56
(1999). States can waive their immunity from suit by private individuals. Id. The
adoption of the Fourteenth Amendment allowed states to be sued for damages by
individuals under federal statutes enacted pursuant to Congress’s power to enforce
the Fourteenth Amendment. Id. at 756. Title VII is one such piece of legislation,
and thus a state is not immune from Title VII claims by private persons.
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Fitzpatrick v. Bitzer, 427 U.S. 445, 447-48 (1976); see also West v. Gibson, 527
U.S. 212, 222 (1999).
Accordingly, VDOC has not moved to dismiss McCurdy’s Title VII claims
on the ground of sovereign immunity. It has invoked the Eleventh Amendment
only as to Count II. The question before the court, then, is whether sovereign
immunity has been waived or properly abrogated as to § 1983 suits seeking to
enforce rights guaranteed by § 1981.
The Eighth Circuit has declared that the Eleventh Amendment bars a § 1981
claim against a state, noting that “other circuits have uniformly held that a state is
immunized from § 1981 liability under the Eleventh Amendment.” Singletary v.
Mo. Dep’t of Corr., 423 F.3d 886, 890 (8th Cir. 2005) (citing Wallace v. Tex. Tech
Univ., 80 F.3d 1042, 1046 (5th Cir. 1996); Mitchell v. L.A. Cmty. Coll. Dist., 861
F.2d 198, 201 (9th Cir. 1988); Freeman v. Michigan, 808 F.2d 1174, 1178 (6th Cir.
1987)). A panel of the Fourth Circuit has reached the same conclusion in a per
curiam unpublished decision. Parks v. Piedmont Tech. Coll., No. 95-2463, 1996
WL 36897, at *1 (4th Cir. Jan. 31, 1996) (unpublished). The Fourth Circuit’s
earlier decision in Huang rested on the assumption that sovereign immunity
generally bars § 1981 and § 1983 claims against an arm of the state. Huang, 902
F.2d at 1138 (noting that the plaintiff “properly concedes that the Eleventh
Amendment bars . . . the § 1981 and § 1983 damage claims”). In accordance with
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this precedent, I find that McCurdy’s § 1981 claim is barred by sovereign
immunity and must be dismissed.
Even if VDOC were not immune from the § 1981 claim, Count II of the
Amended Complaint would still fail to state a claim upon which relief can be
granted. The Supreme Court has squarely held that “a State is not a person within
the meaning of § 1983.” Will, 491 U.S. at 64. Section 1981a does not solve this
problem for McCurdy, as it expressly applies only to Title VII claims, not to
§ 1983 claims. 42 U.S.C. § 1981a(1) (“In an action brought by a complaining
party under section 706 or 717 of the Civil Rights Act of 1964 . . . the complaining
party may recover compensatory and punitive damages as allowed in subsection
(b) of this section, in addition to any relief authorized by section 706(g) of the
Civil Rights Act of 1964, from the respondent.”)
The Supreme Court has
repeatedly explained that § 1981a was enacted to amend Title VII to allow for
compensatory and punitive damages. See, e.g., Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 72 (2006); West, 527 U.S. at 215-16. Section 1981a does not
purport to have any effect on § 1983 actions seeking to enforce § 1981 rights.
Because § 1983 provides the only remedy for violation of the rights secured by
§ 1981, and because VDOC is not a “person” within the meaning of § 1983, Count
II of the Amended Complaint fails to state a cognizable claim.
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Finally, VDOC asserts that McCurdy has failed to exhaust his administrative
remedies as to Counts I and III because the Attorney General has not notified
McCurdy of whether it has decided to take any action related to this matter.
The Title VII enforcement statute provides that in cases against
governmental entities, if the Equal Employment Opportunity Commission
(“Commission” or “EEOC”) “has been unable to secure from the respondent a
conciliation agreement acceptable to the Commission, the Commission shall take
no further action and shall refer the case to the Attorney General who may bring a
civil action against such respondent in the appropriate United States district court.”
42 U.S.C. § 2000e-5(f)(1). The statute goes on to state:
If a charge filed with the Commission pursuant to subsection (b) of
this section is dismissed by the Commission, or if within one hundred
and eighty days from the filing of such charge or the expiration of any
period of reference under subsection (c) or (d) of this section,
whichever is later, the Commission has not filed a civil action under
this section or the Attorney General has not filed a civil action in a
case involving a government, governmental agency, or political
subdivision, or the Commission has not entered into a conciliation
agreement to which the person aggrieved is a party, the Commission,
or the Attorney General in a case involving a government,
governmental agency, or political subdivision, shall so notify the
person aggrieved and within ninety days after the giving of such
notice a civil action may be brought against the respondent named in
the charge (A) by the person claiming to be aggrieved or (B) if such
charge was filed by a member of the Commission, by any person
whom the charge alleges was aggrieved by the alleged unlawful
employment practice.
Id. (emphasis added). A related regulation states:
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In all cases where the respondent is a government,
governmental agency, or a political subdivision, the Commission will
issue the notice of right to sue when there has been a dismissal of a
charge. The notice of right to sue will be issued in accordance with
§ 1601.28(e).
In all other cases where the respondent is a
government, governmental agency, or political subdivision, the
Attorney General will issue the notice of right to sue, including the
following cases:
(1) When there has been a finding of reasonable cause by the
Commission, there has been a failure of conciliation, and the Attorney
General has decided not to file a civil action; and
(2) Where a charging party has requested a notice of right to sue
pursuant to § 1601.28(a)(1) or (2). In cases where a charge of
discrimination results in a finding of cause in part and no cause in
part, the case will be treated as a “cause” determination and will be
referred to the Attorney General.
29 C.F.R. § 1601.28(d).
In this case, the Commission issued a Dismissal and Notice of Rights, which
indicated that the Commission was “unable to conclude that the information
obtained established violations of the statute.” (Mem. of Law in Supp. of Def.’s
Mot. to Dismiss Pl.’s Am. Compl. Ex. A, ECF No. 14-1.) This notice comports
with the procedure described in the above-quoted regulation. Therefore, I find that
McCurdy has exhausted his administrative remedies.
The Fourth Circuit addressed an argument similar to VDOC’s in Moore v.
City of Charlotte, 754 F.2d 1100, 1104 n.1 (4th Cir. 1985).
In Moore, the
defendant argued that “the district court lacked subject-matter jurisdiction because
Moore’s right-to-sue letter was issued by the EEOC rather than by the Attorney
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General, the authority designated by Title VII for cases in which the defendant is a
political subdivision of a state.” Id. The Fourth Circuit rejected this argument,
noting that a plaintiff’s “entitlement [to notice] is unaffected by any EEOC
assumption of Justice Department duties, as Moore may not be penalized for an
EEOC failure to fulfill its statutory duties even if such a failure is presented by the
administrative division of responsibility between the EEOC and the Attorney
General.” Id.
The EEOC and Justice Department have adopted and delineated a procedure
for issuance of notice letters, which they followed in this matter. McCurdy was
not required to wait to receive a separate notice from the Attorney General to
commence this suit. Based on the above-quoted regulatory language, it is likely
that no such notice was ever forthcoming. I decline to dismiss McCurdy’s Title
VII claims based on the lack of a notice from the Attorney General and will deny
the Motion to Dismiss as to Counts I and III.
IV.
For the foregoing reasons, it is ORDERED that the Motion to Dismiss (ECF
No. 13) is GRANTED as to Count II, DENIED as to Counts I and III, and
DENIED as moot as to the demand for punitive damages.
ENTER: December 7, 2016
/s/ James P. Jones
United States District Judge
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