Tate v. The Home Depot et al
MEMORANDUM OPINION. Signed by Judge Jackson L. Kiser on 1/4/17. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LATOYA A. TATE,
Case No.: 4:16-cv-00022
THE HOME DEPOT, ET. AL,
By: Hon. Jackson L. Kiser
Senior United States District Judge
On May 18, 2016, LaToya Tate (“Plaintiff”) filed the present action against The Home
Depot, Brett Newman, and Sarah Motley (“Defendants”). Plaintiff alleges that she was subjected
to unlawful retaliation and discrimination in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”). Defendants have each filed a Motion to Dismiss for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). [ECF Nos. 10, 14, 20.] The matter was fully briefed, and the parties
appeared before me on December 15, 2016. For the reasons stated below, I will deny The Home
Depot’s Motion, and I will grant the motions filed by Newman and Motley.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On or around October 28, 2011, Plaintiff was first hired as a part-time cashier at The
Home Depot in Danville, Virginia. (Brett Newman Br. in Supp. of Mot. to Dismiss, at 1, Aug. 31,
2016 [ECF No. 11] (hereinafter “Newman Br.”).) Plaintiff was eventually promoted to a full-time
sales position in the paint department. (Id.) According to Plaintiff, she filed a Charge of
Discrimination with the Equal Employment Opportunities Commission (“EEOC”) on May 26,
2014 (“the First Charge”).1 (Resp. to Order, at 3–11, Dec. 12, 2016 [ECF No. 36].) The First
Defendants correctly point out that Plaintiff actually filed the First Charge on August 7, 2014. (See
Newman Br., at 2.) Plaintiff is likely referring to the initial intake questionnaire, which she submitted to
Charge alleged that The Home Depot perpetuated a “racially hostile work environment,” and that
the store’s management had done little to address complaints made by Plaintiff and others
regarding her coworkers’ use of racially insensitive language in the workplace. (Resp. to Order,
at 7–8.) She also alleged that she was denied a promotion due to her race. (Id. at 8.)
Plaintiff also alleges that her supervisors retaliated against her for filing the First Charge.
She alleges that Newman, the Store Manager, “[s]ingled [Plaintiff] out to clean floors and other
departments that were already clean.” (Compl. ¶ 9B.) Further, Motley, a Department Supervisor,
“[s]ubjected [Plaintiff] to maintaining a work log that no one else in the department was required
to use,” and Plaintiff “began to receive write-ups that were unfair and untrue.” (Id. at ¶¶ 9B–9C.)
On November 6, 2014, The Home Depot terminated Plaintiff’s employment. (Compl. ¶
3.) According to Plaintiff, she was told that her termination was due to “[i]nsubordinate conduct
towards management.” (Compl. ¶ 9C.) She then filed another EEOC charge on January 15, 2015
(“the Second Charge”).2 (Resp. to Order, at 12–15.) On both charges, the EEOC’s investigation
was inconclusive, and Plaintiff was issued two notices of right to sue on February 18, 2016.
(Notices of Right to Sue, February 18, 2016 [ECF No. 2–1].)
Three 12(b)(6) motions to dismiss are before the Court. Motley and Newman have each
moved to dismiss the claims against them on the basis that Title VII does not authorize suits
against supervisors in their individual capacity. In the alternative, they argue that Plaintiff’s
Complaint fails to meet the pleading standards under Fed. R. Civ. P. 8(a). (See generally Sarah
the EEOC on May 27, 2014. This Court issued an Order, compelling Plaintiff to produce copies of both
Charges of Discrimination to establish that she had exhausted her administrative remedies. [See ECF No.
35]. She promptly complied. (See Resp. to Order, Dec. 12, 2016 [ECF No. 36].)
While Plaintiff did file a copy of the Second Charge with the Court, it is an undated copy, so it remains
unclear when the Second Charge was filed. Plaintiff did, however, attach her Notice of Right to Sue to her
Complaint. (See Notices of Right to Sue, February 18, 2016 [ECF No. 2–1].) In their briefs, Defendants
state that the Second Charge was filed on January 15, 2015. (See, e.g., Newman Br. at 2.)
Motley Br. in Supp. of Mot. to Dismiss, Sept. 15, 2016 [ECF No. 15].) The Home Depot also
filed a Motion to Dismiss under 12(b)(6), arguing that Plaintiff has (1) failed to exhaust her
administrative remedies, and (2) failed to meet the pleading standards of Rule 8(a). (See The
Home Depot Br. in Supp. of Mot. to Dismiss, Oct. 21, 2016 [ECF No. 21] (hereinafter “The
Home Depot Br.”).) Plaintiff filed three responses to each of Defendants’ Motions [ECF Nos. 18,
19, 28]. Motley and The Home Depot each filed a Reply to Plaintiff’s Responses. [ECF No. 22,
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)).
Pleadings must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 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.” 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.
The Court’s Consideration of Plaintiff’s EEOC Charges
In ruling on a 12(b)(6) motion, a court generally cannot consider evidence outside of the
pleadings without converting the motion into one for summary judgment. See Fed. R. Civ. P.
12(d). There is, however, an exception for materials which are explicitly referenced and relied
upon by a plaintiff in her complaint. See Gibbons v. Chas H. Sells, Inc., No. 5:09-cv-448-F, 2010
WL 4695516, at *4 (E.D.N.C. Oct. 22, 2010); Beam v. Agape Mgmt. Servs., Inc., No. 3:08-3445CMC-PJG, 2009 WL 2476629, at *6 (D.S.C. Aug 11, 2009) (holding that an EEOC Charge of
Discrimination can be considered in ruling on a defendant’s 12(b)(6) Motion to Dismiss). In her
Complaint, Plaintiff explicitly refers to both charges that she filed with the EEOC, and attached
the relevant right to sue notices. (See Notices of Right to Sue, February 18, 2016 [ECF No. 2–
1].) In response to this Court’s Order, Plaintiff filed the actual charges. (See generally Resp. to
Order [ECF No. 36].) Therefore, it is appropriate to consider the contents of Plaintiff’s charges
before the EEOC given that they form the basis for her action.
Individual Liability of Motley and Newman
Motley and Newman argue that all claims against them should be dismissed because
supervisors and managers cannot be sued in their individual capacities for alleged Title VII
violations. The Fourth Circuit has held that Title VII does not provide for individual liability and
noted that “every circuit that has confronted this issue since the enactment of [Title VII] has
rejected claims of individual liability.” Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 181
(4th Cir. 1998). This Court has previously reached the same conclusion, holding that the
remedial scheme of Title VII is “obviously tied to the employer rather than the individual
supervisor.” Pritchard v. Earthgrains Baking Cos., No. 7:98-cv-00536, 1999 WL 397910, at *10
(W.D. Va. March 5, 1999).
This Court has also held that suits against individual supervisors as agents of the
employer can be appropriate in some situations where the employer is a public entity. See, e.g.,
McLean v. Broadfoot, No. 4:10-cv-00019, 2011 WL 1833302, at *10 (W.D. Va. May 13, 2011)
(allowing a Title VII suit against the chief of a police department). There is no need, however, to
include individual supervisors when the employer is also listed as a party. Malone v. Shenandoah
Cty. Dept. of Soc. Servs., No. 5:04-cv-00114, 2005 WL 1902857, at *2 (W.D. Va. Aug. 9, 2005)
(holding that claims against individual supervisors are “redundant and may be dismissed” when
the employer is also named in the lawsuit). Suing Motley and Newman in addition to The Home
Depot indicates that Plaintiff is attempting to sue them in their individual capacities, rather than
as agents of their employer. Accordingly, all claims against Motley and Newman should be
Sufficiency of Plaintiff’s Retaliation Claim
In its brief, The Home Depot argues that Plaintiff has failed to state a claim of retaliation
under Title VII.3 Title VII bars employers from retaliating against employees for reporting Title
VII violations. 42 U.S.C. § 2000e-3(a). A successful claim for retaliation must prove three
things: (1) the plaintiff engaged in a protected activity; (2) an adverse employment action was
At oral arguments, Defendants’ counsel conceded that Plaintiff did, in fact, state a claim of retaliation.
taken against the plaintiff; and (3) there was a causal link between the protected activity and the
adverse action. Mackey v. Shalala, 360 F.3d 464, 469 (4th Cir. 2004).
A plaintiff is not required to establish a prima facie case to satisfy Rule 8(a). 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.”).4 A plaintiff is not required to meet this evidentiary standard to survive a
12(b)(6) motion, but she needs to allege sufficient facts related to each element of her claims to
“nudge [her] claims across the line from conceivable to plausible.” Tombly, 550 U.S. 544, 570.
Defendants do not deny that Plaintiff was engaged in a protected activity when she filed
both of her charges with the EEOC. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . . because
he has made a charge . . . or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”) Defendants also do not deny that the disciplinary write-ups and
subsequent termination constituted adverse employment actions. Instead, Defendants argue that
Plaintiff only provides “vague, conclusory allegations” in demonstrating a causal link between
her protected activity and the adverse employment actions taken against her. (The Home Depot
Br., at 6.) According to Plaintiff’s Complaint, she “began to receive write-ups that were unfair
and untrue.” (Compl. ¶ 9C.) She was also “singled . . . out to clean floors and . . . maintain a
work log that no one else in the department was required to use.” (Id. at ¶ 9B.) According to
Plaintiff, she received three write-ups after filing the First Charge:
While Swierkiewicz applied the liberal pleading standard first articulated in Conley v. Gibson, 355 U.S.
41, 45–46 (1957), and explicitly overruled by Twombly, 550 U.S. at 562–63, the Fourth Circuit has
recognized that a plaintiff “need not plead the evidentiary standard for proving a Title VII claim.”
McCleary-Evans v. Md. Dept. of Transp., 780 F.3d 582, 586 (4th Cir. 2015) (original emphasis); see also
Twombly, 550 U.S. at 585–86 (affirming the reasoning in Swierkiewicz that a plaintiff in an employment
discrimination case does not need to establish a prima facie case at the pleading stage).
The first write-up, I was accused [sic] of calling an associate a
racist. I stated that the associate used “racist language.” The second
write up, [sic] was for making an associate aware of a missed call.
The third write-up, I was [sic] accused of using profanity towards
(Id. at ¶ 9F.) She alleges that these claims were untrue, and the Court must accept this
characterization for purposes of a 12(b)(6) motion.
Defendants are muddling the difference between pleading and evidentiary requirements.
Plaintiff is not required to establish a prima facie case in order to defeat a motion to dismiss. The
allegations in her Complaint are more than just a rote regurgitation of legal conclusions or “an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 679. Plaintiff’s
Complaint has met the pleading requirements of Rule 8(a) and Twombly/Iqbal (especially in light
of the more liberal pleading standards afforded to plaintiffs appearing pro se).
Sufficiency of Plaintiff’s Discrimination Claim
Plaintiff’s retaliation claim arises out of the First Charge, wherein she alleged that she
was, among other things, passed over for a promotion due to her race. A plaintiff alleging
disparate treatment based on race must show:
(i) that [she] belongs to a racial minority; (ii) that [she] applied and
was qualified for a job for which the employer was seeking
applicants; (iii) that, despite [her] qualifications, [she] was
rejected; and (iv) that, after [her] rejection, the position remained
open and the employer continued to seek applicants from persons
of [the plaintiff’s] qualifications.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In her EEOC intake
questionnaire, Plaintiff self-identifies as “Black or African-American,” satisfying the first
element of her cause of action. (Resp. to Order, at 3 [ECF 36].) On or around August 1, 2013,
Plaintiff sought a transfer to the store’s paint department. She was denied this transfer, and was
told by Newman that “it wouldn’t be a good fit.” (Id. at 9.) Instead, Newman gave the position to
a less experienced, Caucasian employee. (Id.) These allegations, accepted as true here, satisfy the
Iqbal plausibility standard. Plaintiff has plainly alleged that she was denied a position because of
her race, and that the position remained open and was given to a less qualified, Caucasian
Plaintiff also alleges that The Home Depot permitted a racially hostile work environment.
In order to prevail, Plaintiff would have to prove that “the conduct she alleges was (1)
unwelcome; (2) based on her race; (3) sufficiently severe or pervasive to alter the conditions of
her employment and to create an abusive work environment; and (4) imputable to her employer.”
Pryor v. United Air Lines, Inc., 791 F.3d 488, 495–96 (4th Cir. 2015).
The first two elements are undisputed by either party. With regard to the third element,
Plaintiff alleges that, around April 12, 2014, she was in the employee break room when she heard
an employee, Chris Clement, make a reference to “jungle monkey language”, which Plaintiff
describes as “colloquial for the ‘N’ word.” (Resp. to Order, at 7 [ECF No. 36].) Plaintiff also
alleges that at some point during her employment, a customer complained to her that another
Home Depot employee, Dwain Trimble, asked the customer, “did any of those niggers in there
help you?” (Id. at 10.)
At oral arguments, Defendants pointed out that this Court has previously held that
“offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Shuler v. Corning, Inc., No.
4:08cv00019, 2008 WL 3929139, at *2 (W.D. Va. Aug. 21, 2008) (citing Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). While true, the present case is distinguishable in two
ways: (1) the statement at issue in Shuler was a far more innocuous, political statement made in
the context of a presidential election, questioning whether then-Senator Obama was receiving
votes because of his race; and (2) Plaintiff has alleged at least two instances of racial slurs being
used in the workplace whereas there was only a single instance of offensive language alleged in
Shuler. I make no judgment regarding the merits of Plaintiff’s claim at this stage, but these
distinctions are enough for Plaintiff’s claim to survive a 12(b)(6) motion.
The fourth element of Plaintiff’s claim requires proof that the employer is liable for the
hostile work environment. If, instead of a supervisor, the harassment originates from a plaintiff’s
co-worker, “the employer is liable only if it was negligent in controlling working conditions.”
Vance v. Ball State Univ., 133 S.Ct. 2434, 2439 (2013). Trimble and Clement appear to have been
Plaintiff’s co-workers given that they are not “empowered by the employer to take tangible
employment actions against [Plaintiff].” Id. Plaintiff squarely places the blame for Trimble and
Clement’s behavior on The Home Depot, stating, “I believe this Home Depot in Danville VA
[sic] does nothing to deter racist behaviors.” (Resp. to Order, at 10 [ECF No. 36].) Plaintiff
alleges that she made multiple complaints to her supervisors regarding the comments made by
Trimble and Clement, but that these complaints were not properly investigated. (Id. at 9–10.)
As stated above, I am reserving any judgment regarding the merits of P’s claims. She has,
however, pled sufficient facts for her race discrimination claims to satisfy Rule 8(a).
It is well-established that Title VII does not permit suits against supervisors in their
individual capacity. Accordingly, Newman and Motley are improper defendants, and their
motions to dismiss under Rule 12(b)(6) will both be GRANTED.
Plaintiff has filed two charges of discrimination with the EEOC, providing those charges
to the Court, and attaching her Notice of Right to Sue to her Complaint. The Charges supplement
her Complaint, and provide enough factual support to meet the plausibility standard of Twombly
and Iqbal as well as Rule 8(a). The Home Depot’s Motion to Dismiss under Rule 12(b)(6) will
therefore be DENIED.
Entered this 4th day of January, 2017.
s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE
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