Neal v. Patrick Henry Community College
Filing
34
MEMORANDUM OPINION. Signed by Judge Jackson L. Kiser on 9/3/15. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
RODERICK Q. NEAL,
Plaintiff,
v.
PATRICK HENRY COMMUNITY
COLLEGE,
Defendant.
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Case No. 4:15-cv-00004
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge
Before me is Defendant Patrick Henry Community College’s Motion to Dismiss
Plaintiff’s First Amended Complaint. [ECF No. 26.] The matter was briefed by the parties, and
I heard oral argument on the motion on July 21, 2015. For the reason stated herein, Defendant’s
Motion to Dismiss will be granted in part and denied in part. Specifically, I will grant the motion
with respect to Claim II (violation of due process) and Plaintiff’s (Claim I) claims of disparate
compensation and hostile work environment, but deny it with regard to (Claim I) claims of
discrimination and retaliation in violation of Title VII.
I.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND1
Plaintiff Roderick Q. Neal (“Plaintiff” or “Neal”) was an Associate Professor of
Sociology/Psychology at Defendant Patrick Henry Community College (“Defendant” or
“PHCC”). Plaintiff was initially hired to teach at PHCC in December of 2010.
At some point in 2013, Plaintiff alleges that a non-minority student used the “N-word” in
his class. Plaintiff “confronted the student at which time he became aggressive verbally in a
threatening manor [sic]. [Plaintiff] contacted the security officer immediately and had [the
1
The facts are taken from Plaintiff’s pro se Amended Complaint. As this stage, it is appropriate to accept
Plaintiff’s factual allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
student] removed from the class.” (Am. Compl. ¶ 9 [ECF No. 25].) Plaintiff alerted PHCC
administrators about the incident, but he asserts that “no action was taken what so ever [sic]. In
fact [the student] was allowed to remain in class.” (Id.)
On January 14, 2014, as part of the faculty review and promotion process, Plaintiff
received an “Excellent” on his faculty evaluation form. Two months later, on March 17, Plaintiff
received a Promotion Appointment Proposal for the upcoming school year. Ten days after that, a
student submitted a complaint against Plaintiff, alleging “inappropriate sexual statements, class
cancelations [sic].” (Id. ¶ 12.) Plaintiff alleges that the allegations were false, and the student
subsequently withdrew her complaint.
On April 3, 2014, as part of the same faculty review and promotion process, Dean Greg
Hodge conducted an in-class review of Plaintiff. Plaintiff asserts that that evaluation was neither
“valid nor reliable.” (Id. ¶ 14.) The April review “was only one part of the overall evaluation
process.” (Id.) Around the same time, Plaintiff received student evaluations as another element
of his review. The students cumulatively ranked Plaintiff 4.488 out of a possible 5, a rating
indicating “Very Good/High Professional Performance.” A rating of 4.5 or higher indicates
“Excellent/Exemplary Professional Performance.”
On April 14, 2014, Plaintiff met with Dean Hodge. During that meeting, Plaintiff claims
that he questioned a salary and promotion document from the Human Resources Office that is
used for outlining salaries and promotions based on professional and academic credentials. He
also asked about income inequality and raised salary inequality concerns that several AfricanAmerican employees had been discussing. (See id. ¶¶ 19–20, 39–40.)
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A few weeks later, on May 7, 2014, Plaintiff met with Dr. Westover and Chris Parker,2
ostensibly to discuss Plaintiff’s evaluation. At that time, they advised Plaintiff that he was not
being recommended for reappointment; essentially, Dr. Westover and Chris Parker told Plaintiff
that he was being fired. They showed him a memo they had prepared for President Godwin
outlining their reasons for the recommendation. Plaintiff was surprised to see in the memo
statements regarding his April 14th meeting with Dean Hodge. The semester ended ten days
later.
On May 22, Plaintiff filed a complaint with the Equal Employment Opportunity
Commission, wherein Plaintiff stated that he believed he “was discriminated against because of
[his] race (African American) and subjected to retaliation for complaining of unlawful
employment practices among other issues, in violation of the Civil Rights Act of 1964, as
amended.” [ECF No. 2-8.] On May 27, Plaintiff received an e-mail with his termination letter.
The next day, he filed a grievance regarding his termination with Dean Hodges. Dean Hodges
received that grievance on May 30.
Plaintiff “further filed an appeal regarding wrongful
termination on June 4, 2014. [Plaintiff] received a letter from Dr. Westover, dated June 5, 2014,
that [his] appeal for wrongful termination was denied.” (Am. Compl. ¶ 25.)
At some point, Plaintiff filed a complaint with the Virginia Department of Human
Resources Management, Office of Equal Employment Services (“OEES”). (See id. ¶ 36.) On
September 11, 2014, OEES informed Plaintiff that he could not pursue a grievance with both
OEES and through the state grievance procedure. Plaintiff withdrew his grievance on September
16 and proceeded with his complaint at OEES.
Plaintiff received a Dismissal and Notice of Rights letter from the EEOC on October 27,
2014; the EEOC made no determination regarding Plaintiff’s allegations. Plaintiff filed suit in
2
Dr. Westover and Chris Parker’s roles at PHCC is unclear.
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this Court on January 27, 2015. On March 4, 2015, OEES informed Plaintiff that it was closing
its investigation due to the present lawsuit. No findings were ever made regarding Plaintiff’s
allegations.
Defendant moved to dismiss Plaintiff’s original Complaint, and I granted that motion on
April 14, 2015. Plaintiff timely filed an Amended Complaint, which Defendant has moved to
dismiss as well. After thorough briefing and argument, the matter is ripe for decision.
II.
STANDARD OF REVIEW
As an initial matter, pro se complaints are held to “less stringent standards than the
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
When a challenge to subject matter jurisdiction is raised under Rule 12(b)(1), “the burden
of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac
R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982)). “In determining whether jurisdiction exists, the district court is to regard the
pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment.” Id. “The court
must grant the motion ‘only if the material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.’” Little v. Stock Bldg. Supply, LLC, Case No.
4:10-cv-129, 2011 WL 5146179, at *3 (E.D.N.C. Sept. 2, 2011) (quoting Richmond, 945 F.2d at
768).
To survive a Rule 12(b)(6) motion to dismiss, 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
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(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.”
Iqbal, 556 U.S. at 678. In determining facial plausibility, the court must accept all factual
allegations in the complaint as true. Id. The Complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual
allegations . . . to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at
555 (internal quotation marks omitted). Therefore, the Complaint must “allege facts sufficient to
state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765
(4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations,” a pleading that merely offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
III.
DISCUSSION
At the outset, it is important to note that, although Plaintiff is proceeding pro se and is
therefore entitled to some deference in his pleadings, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), his claims must be limited to those allegations made to the EEOC. See Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 962–63 (4th Cir. 1996); Lawson v.
Burlington Indus., Inc., 683 F.2d 863–64 (4th Cir. 1982). Giving his Amended Complaint a
generous reading, Plaintiff asserts two overarching claims. First, he asserts discrimination under
Title VII. Within this claim (Claim I), he asserts discrimination, retaliation, discrimination in
compensation, and hostile work environment. Second, he asserts a violation of due process
(Claim II). These claims will be addressed in turn.3
3
Defendant has raised an overarching objection that the majority of Plaintiff’s allegations were not before
the EEOC, and that he therefore did not exhaust his administrative remedies. I am not persuaded by this
argument. Plaintiff alleged that he was the victim of discrimination and retaliation on account of his race.
Plaintiff is only required to submit his claims to the EEOC; he is not required to plead those claims under
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A. Claim I: Discrimination
“In order to establish a prima facie case of employment discrimination, [Plaintiff] must
show: (1) that [he] is part of a protected class; (2) that [he] was meeting [his] employer’s
legitimate performance expectations; (3) that [he] was subjected to an adverse employment
action; and (4) that the circumstances of the adverse action ‘rationally support the inference that
the adverse employment action was motivated by unlawful considerations.’”
Cuffee v.
Tidewater Comm. College, 409 F. Supp. 2d 709, 717 (E.D. Va. 2006) (quoting Chika v. Planning
Research Corp., 179 F. Supp. 2d 575, 581 (D. Md. 2002)). There is no doubt that Plaintiff, an
African-American, is a member of a protected class, and there is no contention that his
termination was not an adverse employment action. Thus, Plaintiff satisfies the first and third
prongs. Defendant challenges only the second prong.
Plaintiff contends that, despite meeting his employer’s legitimate expectations, he was
not offered reappointment. Defendant counters that, based on Dean Hodge’s evaluation, Plaintiff
was not meetings its expectations. Judging simply the Amended Complaint on its face, Plaintiff
has alleged that he was meeting his employer’s legitimate expectations.
Plaintiff alleged that, in January of 2014, he received an “Excellent” on his faculty
evaluation. In March of 2014, he received a Promotion Appointment Proposal for the upcoming
school year, indicating that he was “being considered for a multi-year appointment for the
position of Professor of Sociology & Psychology.” (Def.’s Mem. in Supp. Mot. to Dismiss pg.
3, May 8, 2015 [ECF No. 27] [“Def.’s Mem.”].) Around that same time, the students scored
the standard applicable to his Complaint in this Court. (See Def.’s Mem. pg. 11–12 (arguing that
Plaintiff’s allegations in his EEOC complaint “are fatally defective because they do not meet the
plausibility standard required by Twombly/Iqbal”). Moreover, Defendant is not entitled to avoid every
factual allegation that Plaintiff did not plead before the EEOC. I find that Plaintiff adequately alleged his
claims of discrimination, disparate compensation, and retaliation in his complaint with the EEOC. (See
ECF No. 2-8 ¶ III.)
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Plaintiff a mere .012 points away from the “Excellent” rating. These facts, as adequately
pleaded, allege that Plaintiff was meeting Defendant’s legitimate performance expectations.
Defendant counters by arguing that the Promotion Appointment Proposal is an automatic
process that does not mean anything definitive, apparently “a tale . . . , full of sound and fury,
signifying nothing.” William Shakespeare, Macbeth, act 5, sc. 5.4 Even assuming that is true,
that allegation is not in Plaintiff’s Amended Complaint. Defendant cannot secure dismissal
under Rule 12(b)(6) by relying on facts that Plaintiff did not plead.5 This argument will have to
be reserved for the appropriate time.
PHCC also argues that Plaintiff cannot point to a similarly situated employee who was
treated better. (See Def.’s Mem. pg. 14–16.) This argument misses the mark. Plaintiff “is not
required as a matter of law to point to a similarly situated white comparator in order to succeed
on a race discrimination claim. . . . However helpful a showing of a white comparator may be to
proving a discrimination claim, it is not a necessary element of such a claim.” Bryant v. Aiken
Reg’l Med. Ctrs. Inc., 333 F.3d 536, 545–46 (4th Cir. 2003). Plaintiff mistakenly grafts one
element of a disparate compensation claim, see, e.g., White v. BFI Waste Servs., LLC, 375 F.3d
288, 295 (4th Cir. 2004) , onto the causation requirement of a generic race discrimination claim.
Because a “similarly situated” comparator is not an element of this claim, Defendant’s argument
is easily rejected.
4
The full quote from Macbeth is, “[I]t is a tale told by an idiot, full of sound and fury, signifying
nothing.” The harshness of the full quote, in this context, is unwarranted.
5
The Promotion Appointment Proposal has not been submitted for the court to review. See Zak v.
Chelsea Therapeutics Intern., Ltd., 780 F.3d 597, 606–07 (4th Cir. 2015) (permitting review of documents
relied on in the complaint and whose authenticity is not questioned). Any argument regarding how and
why the Promotion Appointment Proposal was created and sent is not appropriate to consider on a Rule
12(b)(6) motion to dismiss.
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Plaintiff has adequately pleaded the elements of a race discrimination claim under Title
VII, and Defendant’s motion will be denied in that respect.
B. Claim I: Retaliation
Plaintiff has alleged a clear-cut case of retaliation. “The elements of a prima facie
retaliation claim under Title VII are: (1) engagement in a protected activity; (2) adverse
employment action; and (3) a causal link between the protected activity and the employment
action.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Mackey v.
Shalala, 360 F.3d 463, 469 (4th Cir. 2004)).
The Fourth Circuit has added additional
requirements to the first prong of the prima facie case. Generally speaking, complaining about
or opposing conduct made unlawful by Title VII is a protected activity. See, e.g., Harden v.
Wicomico Co., Md., 436 Fed. App’x 143, 146 (4th Cir. 2011) (unpublished). In order for a
complaint to be a “protected activity,” however, the complainant, who need not be the victim,
must subjectively believe that he is complaining about conduct that is unlawful, and that belief
must be objectively reasonable. See EEOC v. Navy Fed. Credit Union, 424 F. 3d 397, 406-07
(4th Cir. 2005); see also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per
curiam) (resolving the objective reasonableness of Title VII plaintiff’s beliefs through the
summary judgment process, thereby making the issue a question of law).
Defendant argues that Plaintiff concedes he was terminated for a number of reasons, but
this argument relies on allegations in the dismissed original Complaint.
In the Amended
Complaint, Plaintiff does not make any allegations regarding PHCC’s other alleged justifications
for its actions. Boiled down to their essence, Plaintiff’s allegations in the Amended Complaint
are:
(1) he was sent a Promotion Appointment Proposal;
(2) he received an excellent faculty evaluation;
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(3)
(4)
(5)
(6)
he received an impressive score on his student evaluations;
he questioned income inequality among African-American professors;
he was fired;
all within the span of five months.
Whether PHCC can offer evidence showing that the alleged retaliation was not a “but-for” cause
of Plaintiff’s termination is a question for another day.6 The only question here is whether
Plaintiff’s allegations make out a prima facie case of retaliation. He has.
Defendant also counters that Plaintiff has not alleged that PHCC’s stated reasons for
firing him were pretextual. First, Plaintiff does not address PHCC’s reasons for its actions at all,
so he need not claim they were pretextual. Rather, he alleges that he was fired after questioning
salary inequalities for minority professors. His Amended Complaint does not address—and need
not address—PHCC’s defense. All that is required is that he plead his case, not Defendant’s.
Moreover, the issue of pretext is only relevant if Plaintiff is proceeding under the
McDonnell-Douglas burden-shifting framework. “Plaintiffs [alleging retaliation] may prove
[their] violations either through direct and indirect evidence of retaliatory animus, or through the
burden-shifting framework of McDonnell Douglas Corp. v. Green.” Foster v. Univ. of Md.Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015). Under the McDonnell-Douglas framework, if
an employer offers a legitimate, nonretaliatory reason for its action, “the burden shifts back to
the plaintiff to rebut the employer’s evidence by demonstrating that the employer’s purported
nonretaliatory reasons ‘were not its true reasons, but were a pretext for discrimination.’” Id.
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). But Plaintiff is
6
In University of Texas Southwestern Medical Center v. Nassar, “the Supreme Court held that the
lessened causation standard of [42 U.S.C.] § 2000e-2(m) does not apply to retaliation claims. Unlike
discrimination plaintiffs, retaliation plaintiffs are limited to ‘traditional principles of but-for causation’
and must be able to prove that ‘the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.’” Foster v. Univ. of Md.-Eastern Shore, 787 F.3d
243, 249 (4th Cir. 2015) (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)).
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not required to proceed under that theory. It follows, then, that he is not required to plead that
theory. Defendant’s motion will be denied on this claim.
C. Claim I: Discrimination in Compensation
“To establish a prima facie case of race discrimination with respect to salary and
compensation, [Plaintiff] must establish that he is a member of protected class, that his job was
similar to other jobs occupied by those outside his class, and that he receive[d] a lower wage.”
Chika v. Planning Research Corp., 179 F. Supp. 2d 575, 598–84 (D. Md. 2002) (citing BrinkleyObu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994). See also Prince-Garrison v. Md.
Dep’t of Health and Mental Hygiene, 317 F. App’x 351, 353 (4th Cir. 2009) (per curiam)
(unpublished) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007)).
Unlike Plaintiff’s generic Title VII discrimination claim, his lack of a similarly-situated
comparator is fatal to this claim. See White, 375 F.3d at 295.
In his Amended Complaint, Plaintiff does not allege that any white associate professor
was paid more than him. Without that piece of evidence, his complaint can only be described as
one applying to all professors, regardless of their race. His complaint is that no one is paid
enough, not that he was paid less because he is African-American. Such a claim is not colorable
under Title VII, and must be dismissed.
In his response to Defendant’s motion, Plaintiff attempted to lay our further evidence in
support of his argument. On a motion to dismiss, however, it is only the Complaint that is
considered.
If supporting facts are not in his Complaint, Plaintiff cannot rely on those
allegations to defeat a motion to dismiss. For that reason, the evidence and argument he
propounded in his subsequent filings cannot be considered to support his allegations, and
Defendant’s motion will be granted.
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D. Claim I: Hostile Work Environment
Plaintiff also claims that he suffered racial discrimination in the form of a hostile work
environment. (See Am. Compl. ¶ 9.) “To state a claim for hostile work environment, [Plaintiff]
must show that: (1) the harassment was unwelcome; (2) the harassment was based on his race
. . . ; (3) the harassment was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive atmosphere; and (4) there is some basis for imposing liability
on the employer.” Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (citing Hartsell v. Duplex
Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997); see also White, 375 F.3d at 296–97 (quoting
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001). Plaintiff’s sole allegation
giving rise to a hostile work environment claim is his assertion that a student used the “N-word”
in class and that the PHCC administration took no action against him.
Plaintiff did not raise this claim with the EEOC, and therefore he may not pursue it now.
Failure to exhaust his administrative remedies with the EEOC deprives the court of subject
matter jurisdiction. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). The
claim must be dismissed.7
E. Claim II: Due Process
Finally, Plaintiff alleges he was denied due process during his termination and grievance
procedure. In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme
Court held that:
[A]n employee who has a constitutionally protected property
interest in his employment, which a Virginia public employee was
said in Detweiler [v. Virginia Department of Rehabilitative
Services, 795 F.2d 557 (4th Cir. 1983)] to have, is entitled to
“some kind of hearing” prior to discharge. Such hearing “need not
be elaborate” since the hearing “need not definitely resolve the
7
This claim was not addressed by Defendant, but is dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and
12(h)(3).
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propriety of the discharge.” The extent of a public employee’s
right to a pre-termination hearing, according to the Court, was
“oral or written notice of the charges against him, an explanation
of the employer’s evidence, and an opportunity to present his side
of the story.” Anything more than that, the Court declared, “would
intrude to an unwarranted extent on the government’s interest in
quickly removing an unsatisfactory employee.”
Bushi v. Kirven, 775 F.2d 1240, 1255 (4th Cir. 1985) (quoting Loudermill, 470 U.S. at 545–46).
Plaintiff’s Amended Complaint, however, establishes that he cannot proceed on this
claim. By his own admission, he was granted a grievance procedure, but voluntarily withdrew
his claim. When he voluntarily terminated the process he was being offered, he forfeited his
right to complain that the process was insufficient.8 At a minimum, he was obliged to give
PHCC the opportunity to honor his constitutional right to due process. Here, he admits that he
did not. As such, his claim that his due process rights were denied cannot proceed. Defendant’s
motion to dismiss Claim II will be granted.
IV.
CONCLUSION
Plaintiff has adequately pleaded claims for discrimination and retaliation. These claims
were also submitted to the EEOC, and therefore the court has subject-matter jurisdiction over the
claims. Defendant’s motion to dismiss will be denied as to those allegations. Plaintiff’s claims
of disparate compensation, hostile work environment, and violation of his due process rights will
be dismissed for failure to state a claim and for lack of subject matter jurisdiction.
8
There is no allegation that Defendant or any state agency or actor pressured or coerced Plaintiff into
dropping his grievance. Rather, he admits that he dropped it in order to pursue a remedy with OEES.
That was entirely his option.
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The clerk is directed to forward a copy of this Memorandum Opinion and accompanying
Order to Plaintiff and all counsel of record.
Entered this 3rd day of September, 2015.
s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE
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