Wright v. Hilldrup Moving & Storage, No. 1:2016cv01349 - Document 41 (E.D. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER- it is hereby ORDERED that and Defendant's Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon Which Relief Can Be Granted [Doc. No. 9] be, and the same hereby is, GR ANTED in part and DENIED in part; ORDERED that Plaintiff's Motion for Summary Judgement and Rebuttal of Defendant's Memorandum in Support of Motion for Summary Judgment [Doc. No. 32] be, and the same hereby is, DENIED; and it is further ORD ERED that Defendant's Motion for Summary Judgment [Doc. No. 21] be, and the same hereby is, GRANTED as to Plaintiff's ADEA claims for discrimination, retaliation, and hostile work environment, and Virginia state law claim for wrongful termination; and this case is DISMISSED. Signed by District Judge Anthony J Trenga on 5/23/2017. (see Order for further details)(dest, ) (copy mailed to pro se)
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Wright v. Hilldrup Moving & Storage Doc. 41 IN THE UNITED STATES DISTICT COURT FOR THE EASTEN DISTICT OF VIRGINIA Alexandria Division JEAN M. WIGHT, Plaintif, v. HILLDRUP MOVING & STORAGE, Deendant. ) ) ) ) ) ) ) ) ) Civil Action No. 1:16-cv-1349 (AJT/JFA) MEMONDUM OPION ND ORDER Prose Plaintif Jen Wright ("Plainti'' or "Ms. Wright") iled this action on Octoer 27, 2016, sserting claims aginst her ormer employer, Defendnt Hilldrup Moving nd Storage ("Deendnt" or "Hilldrup") or discrimination and hostile work environment on he basis of her race nd gender in violation in Title VII, retaliation in violation of Title VII, and wrongul discharge in violation of Virginia state law. Consuing her complaint liberally given her prose status, Plaintif also asserts claims or discrimination nd hostile work environment on he basis of her age, as well as retaliation, in violation of the Age Discriminaion in Employment Act ("ADEA"). Pending beore the Court re (1) Cross Motions or Summry Judment by Defendant [Doc. No. 21] ("Defendant's Motion or Summay Judment") and Plaintif [Doc. No. 32] ("Plainti's Motion or Summary Judment"), and (2) Deendant's Motion to Dismiss Complaint or Lack of Subject Matter Juisdiction nd Failure to State a Claim upon hich Relief Cn Be Granted [Doc. No. 9] (the "Motion to Dismiss") (collectively, the "Motions"). On Dockets.Justia.com Friday, May 19, 2016, the Court held a hearing on the Cross Motions or Summy Judment, ollowing which the Court took he Motions under advisement. Upon considerations of the Motions, the ilings of the pties in support thereof nd in opposiion thereto, he arguments of counsel nd Ms. Wright at he May 19, 2017 hearing, nd or the ollowing reasons, Plaintifs Motion or Summy Judgment is DENIED nd Defendnt's Motions re GRNTED in part and DENIED n pt. The Motion to Dismiss is GRNTED on he rounds that he Court does not have subject matter jurisdiction over ny of Plaintifs Tile VII claims nd is othewise DENIED as moot; Deennt's Motion or Summy Judment is GRNTED s to those remaning ADEA and Virginia law claims over which he Court has subject matter jurisdiction; and his cse is DISMISSED. BACKGROD The ollowing acts are undisputed or, when disputed, taken in the liht most avorable to Plaintif: Hilldrup hired Ms. Wright as an adminisrative assistant in its Infomation Sevices Deparment in July 2015. She was an at-will employee. In December 2015, Ms. Wright raised n issue with her direct supevisor, Scott Fitzgerld, regarding certain lex time. On April 14, 2016, Mr. Fitzgerald nd Roger Croll, Senior Vice President of Infomation Services nd Chief Inormation Oicer, to whom all of the Ifomation Sevice Deptment reported, conducted a six-month perfomnce review with her. The review identiied shortcomings in Plaintifs perfomnce (she was given a rating of 1.25 out of 4), to which Ms. Wright took exception. In erly Jne 2016, Ms. Wright approached Beth Willims, Vice President of Human Resources, to discuss iling a complaint aganst Mr. Crroll or hrassment. Ms. Willims told Ms. Wriht hat she would need to ile a omal complaint nd that she would provide Ms. Wright with the om to do so. On Tuesday, Jne 7, 2016, Ms. Willims emailed Ms. Wright the om, apologizing or the delay in providing it to her nd explaining that she had a fmily emergency the prior week. Ms. Willims received no response to this email. She ollowed up on Monday, June 13, 2016. On June 14, 2016, Ms. Wright responded, telling Ms. Williams that she decided not to ile a ormal complaint wih Hilldrup "due to the lack of concen and seriousness displayed rom all parties involved here at Hilldrup." She infomed Ms. Williams that she had "been advised to seek counseling elsewhere." On June 21, 2016, Ms. Willims notiied Ms. Wright that she ws still available to meet nd discuss her conces urther, if Ms. Wright would like, and that she would move oward to investigate the complaint in ny event. On Tuesday, June 28, 2016, Ms. Willims emailed Ms. Wright to tell her that she would like to meet with her to discuss the results of her investigation. Ms. Wright responded that she did not have any time that atenoon, nd that she was nable to meet the ollowing moing because she was going on vacation on Friday nd would be busy until then. In the same email, Ms. Wright inomed Ms. Willims that she had iled a complaint with the U.S. Equal Employment Opportnity Commission (the "EEOC'') instead of iling the complaint wih Hilldrup's Humn Resources. Also on June 28, 2016, Ms. Wright emailed Mr. Croll, inorming him that the matter was under investigation by the EEOC and that he should only communicate with her through email. 1 1 From the exhibits Ms. Wright submitted to the Cout, it apps that she irst called the EEOC on June I, 2016 to discuss her situation at Hilldrup. The EEOC responded in a letter dated June 3, 2016, attaching an intake questionnaire or her to ill out, which she did on June 8, 2016. On June 17, 2016, the EEOC sent Hilldrup notice of Ms. Wright's charge, which explained that it was investigating alleged discrimination against Ms. Wright based on age and retaliation. In connection with this litigation, Defendant obtained a copy of the Charge rom the EEOC through a Freedom oflnormation Act request. The oicial Charge was dated July 1, 2016 and stamped received by the EEOC on July 22, 2016. In it, Ms. Wright asseted discrimination based on ''realiation," "age," and "oher (bullyin/haassment)" nd gave the ollowing details: I have been employed by the aove Respondent rom 720/2015 and am still employed. My job classiication is Adminisrative Assistnt. 3 The next mong, June 29, 2016, Ms. Williams responded to Ms. Wriht, telling her that Hilldrup ws aware of the EEOC Complaint nd asking her to meet with her, which Ms. Wright did. In that email, Ms. Willims advised Ms. Wright hat she could not prohibit her boss, Mr. Croll, rom speking with her. On August 3, 2016, Mr. Fitzgerald nd Ms. Willims conducted a 12-month perfomnce review with Ms. Wright, which again discussed Hilldrup's concens wih Ms. Wright's intepesonal issues. Mr. Fitzgerald also drated a perfonance improvement plan, which included weekly meetings between Ms. Wright, Mr. Croll, nd Mr. Fitzgerald beween August 12, 2016 and October 7, 2016 to provide Ms. Wright with eedback. Ms. Wright again took exception to her review nd drated a rebuttal to the criticisms. Mr. Croll then drated an addendum to her perfonnce review ther detailing her perfomance issues. On August 5, 2016, Ms. Wright sent Ms. Willims n email asserting that she had been subject to a hostile workplace environment. On August 15, 2016, Ms. Wright nd Ms. Willims met to discuss Ms. Wright's concens nd her request to be rnsfered to noher deparment at Hilldrup. In a ollow-up email, Ms. Willims, noting that Hilldup had ound no evidene of rongdoing, infomed Ms. Wright that Hilldrup was nonetheless instituting provisions to keep verbal communications between Ms. Wright and Mr. Crroll to a minimum nd to have a thirdI have been subject to dispaate reatment and advese employment terms and conditions by my Supevisor Scott Fizgerald (30's} and VP Roger Croll (56). From December 2015 to May 2016, on several occasions, I was subject to intimidation, disrespect and negative perfomance review by the above mnagement team. On or about 526216, I spoke with Humn Resouces Dirctor Beth Williams (40's} about the misreament I received and inquired about possible ievance illing. I believe that the disparate reament nd negative eview was the esult of discrimination against me due to my age (56). I believe that I have been discriminated and realiated against, due to my age (56), n violation of the Age Discrimination in Employment Act of 1967. [Doc. No. 10-1.] On July 28, 2016, the EEOC sent Ms. Wright the Dismissal and Notice of Rights in response to her Charge. party present whenever inteaction between Ms. Wright nd Mr. Croll was required. On September 6, 2016, Ms. Wright sent Mr. Carroll an email informing him that he violated this policy when he spoke with her without nyone else pesent in her section of the oice. By this time, Ms. Wright was openly recording her interactions nd meetings with certain Hilldrup employees, including her weekly meetings with Mr. Croll and Mr. Fitzgerald.2 In September 2016, Ms. Wright inteviewed with Thomas Hinkley, Hilldup's Senior Vice Pesident of Commecial Sales, or nother position in Hilldrup but was not selected. According to Mr. Hinkley, he did not select Ms. Wright because he selected a more qualiied cndidate. On October 6, 2016, Hilldrup teminated Ms. Wright. Hilldup hired Steven Ctis to replace Ms. Wright. Mr. Curtis had retired rom Hilldrup in November 2015 and is 65 yers old. STANDARD OF EVIEW Fed. R. Civ. P. 12b)() Hilldrup contends that the Court is without subject mater jisdiction with espect to Plainti's sex nd race discrimination and hostile work environment claims and all retaliation claims bsed on her iling of the EEOC Chrge. A Rule 12(b)(l ) motion is he appropriate vehicle to contest subject mater jurisdiction. The plaintif ears the burden of establishing the cot's subject matter jurisdiction when contested under Rule 12(b)(l ). Triniy Outdoor, L.L.. v. Ciy ofRocville, 123 F. App'x 101, 105 (4th Cir. 2005) (per curiam). In analyzing motions to dismiss or lack of subject mater jurisdiction, the cot is entitled to review materials outside the pleadings without converting the proceedings to one or sumary judment. See hite Tail 2 Plainif submitted to the Cout as exhibits audio recordings of cetain of her conversations with Ms. Williams, Mr. Carroll, and Mr. Fitzgerald, including her annual review with Ms. Williams and Mr. Fitzgeald, n August 2016 meeting with Ms. Williams, and her weekly meetings with Mr. Croll and Mr. Fitzgeald. The Cout has also eviewed these recordins in its consideation of the Cross Motions or Summay Judgment. Par, Inc. v. Stroube, 413 F.3d 451,459 (4th Cir. 2005); Velasco v. Government ofIndonesia, 370 F.3d 392,398 (4th Cir. 2004). Additionally,the district court nalyzing the motions "should apply the stndard applicable to a motion or summay judment,under which the nonmoving py must set orth speciic acts beyond the pleadings to show that a genuine issue of material act exists." Richmon, Fredericsburg & Potomac R. Co. v. .S., 945 F.2d 765,768 (4th Cir. 1991) (citations omitted). If a disrict court lacks subject matter jurisdiction over an action,the action must be dismissed. .S. ex rel. Vyuru v. Jadhav, 555 F.3d 337,347 (4th Cir. 2009). Fed. R. Civ. P. 56 Under Federal Rule of Civil Procedure 56, summary judment is appropriate oly if the record shows that "there is no genuine issue s to ny material act and that the moving party is entitled to a judment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Libery Lobby, Inc., 477 U.S. 242,247-48 (1986); Evans v. Techs. Apps. & Sev. Co., 80 F.3d 954,958- 59 (4th Cir. 1996). The party seeking summary judment has the initial burden to show the absence of a mateial act. Celotex Corp. v. Catrett, 477 U.S. 317,325 (1986). A genuine issue of material act exists "if the evidence is such hat a resonable jury could ren a verdict or the nonmoving party." Anderson, 477 U.S. at 248. Once a motion or summay judgment is proerly made nd suppoted,the opposing party hs the burden of showing that a genuine dispute exists. Matsshita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586-87 (1986). To deeat a properly supported motion or summy judment, the non-moving pty "must set orth speciic facts showing that there is a genuine issue or ial." Anderson, 477 U.S. at 247-48 ("[T]he mere existence of some alleged actual dispute between the parties will not defeat an ohewise properly supported motion or summry judment; the requirement is that there be no genuine issue of material act."). hether a act is considered "material" is detemined by the substntive law,and "[o]nly disputes over facts that might afect the outcome of the suit under he goveng law will properly preclude the enry of summary judgment." Id. at 248. The facts shall be viewed,and all reasonable inferences drawn, in the light most favorable to he non moving party. Id at 255; see also Lettieri v. Equant Inc., 478 F.3d 640,642 (4th Cir. 2007). ANALYSIS A. Subject Matter Jursdiction As n initial matter,the Court only hs subject maer jurisdiction over federal ..claims that were administratively exhausted beore the EEOC." Wright v. Williamsburg Area Med Assistance Corp., No. 4:12-cv-152, 2014 WL 1056719, at *1 (E.D. Va. Mar. 18,2014), a'd, 585 F. App'x 143 (4th Cir. 2014) (citing Jones v. Calvert Group, Ltd., 551 F.3d 297,300 (4th Cir. 2009)). "'Only those discrimination claims stated in the initial charge,those reasonably related to the original complaint, nd those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit."' Jones, 551 F.3d at 300 (quoting Evans v. Techs. Applicatios & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996)). "Thus,a claim in oml litigation will generally be bared if the EEOC charge alleges discrimination on one basis, such as race, and the omal litigation claim alleges discrimination on a seprate basis, such as sex." Id. Here, the Court does not have jurisdicion over Plaintifs Title VII sex and race based discrimination,retaliation, and hostile work environment claims.3 Ms. Wright's EEOC Charge ws limited to complaints about age-bsed discrimination,retaliation,and hrassment. See [Doc. No. 10-1]. Thereore, the Cort will rant Deendant's Moion to 3 Defendant also contends that the Cout lacks subject matter jurisdiction over ny of Plainti's claims asseting retaliation based on her EEOC chrge because Plaintif did not ile a subsequent charge with the EEOC alleging realiation on this basis. The Fouth Circuit has explained, however, that "a claim of retaliation or the iling of an EEOC chage as discrimination is indeed like or reasonably related to and rowing out of such alleations." Jones, 551 F.3d at 302 (intenal quotation marks omitted). hus, the Cout has subject matter jurisdiction over her ADEA retaliation claim, as her EEOC charge alleged discrimination, retaliation, and hssment in violation of the ADEA. Dismiss on the rounds that it does not have subject matter jurisdiction over ny of Plaintifs Title VII claims. 8. Motions for Summay Judgment The Court addresses Plainti's remaining claims or discrimination, retaliation, nd hostile work environment in violation of the ADEA, nd or wrongul temination under Virginia law, in the context of the pties' cross motions or smmay judment. 1. Age Discrimination "Generally speaing, to establish a prima acie cse of unlawul age discrimination," the plaintif"must show that (1) [s]he is a member of the protected class; (2) [s}he was qualiied or the job nd met [the employer's] legitimate expectations; (3) [s}he was dischrged despite h[er] qualiicaions nd performance; nd (4) ollowing h[er] dischrge, [s}he was replaced by a substanially younger individual with compable qualiications." Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513 (4th Cir. 2006). "A plaintifsuing under the ADEA must show that 'but or' age discrimination, the adverse employment action would not have occured." Kirland v. Mabs, 206 F. Supp. 3d 1073, 1082 (E.D. Va. 2016) (citing Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176 (2009)). Here, Plaintif has filed to establish a prima facie case of discrimination. First, she hs presented no evidence that would allow a reasonable act inder to conclude that her perfomnce met Hilldrup's legitimate expectations. All of the evidence in the record peing to her perfomance indicates that she failed to meet perfomnce expectation rom the start of her job. See [Doc. No. 22-2, 22-3, 22-5]; see also Evans, 80 F.3d at 960-61 ("It is the perception of the decision maker which is relevnt, not the self-assessment of the plaintif.") (intenal quotation marks omitted). It is also undisputed that Ms. Wright ws replaced by n individual who is older thn she is. See Curtis Deel. [Doc. No. 22-5). For these reasons,even viewing the evidence and all reasonable inference in the light most avoable to Ms. Wright,she has not made out a prima facie cse of discrimination on the bsis of her age in violation of the ADEA. 2. Retaliation "An employer violates the ADEA by retaliating against an employee or engaging in a protected activity." Johnson v. Mechanics & Farmers Bank, 309 F. App'x 675,684 (4th Cir. 2009). "The elements of a prima acie case of retaliation are (1) the plaintif engaged in a protected activiy,(2) the employer took n adverse employment action against the plaintif,nd (3) a causl connection existed between the protected activity nd the adverse employment action." Id "If the employee establishes a prima acie cse,the employer may rebut it by presenting evidence of a legitimate,non-retaliatoy reason or the adverse action." Id "ter the employer presents evidence of its legitimate,non-retaliatory reason, the burden shits back to the employee to show that the employer's profered reason is pretextual." Id. Here,Plaintif also fails to mke out a prima acie case of retaliation because there is insuicient evidence or a sonable fact fmder to ind a causal connection between her complaint to he EEOC and her teination on October 6,2016. Hilldrup lened about Ms. Wright's EEOC complaint no later an June 29,2016. This temporal proximity of more than three months is too long to establish a causal connection in itself,as "[e]ven a mere ten-week separation between the protcted activiy nd temination 'is suiciently long so as to weaken siiicntly the inference of causation between the two events."' Pery v. Kappos, 489 F. App'x 637,643 (4th Cir. 2012) (quoting King v. Rumsfeld, 328 F.3d 145,151 n.5 (4th Cir. 2003); see Pascual v. Lowe's Home Centers, Inc., 193 F. App'x 229,233 (4th Cir. 2006) ("In this case,at least three to our months seprated the temination of Pascual's employment and the claimed protected activities. We ind that this time peiod is too long to establish a causal connection by temporal proxiity alone."). Hilldrup's actions surounding Ms.Wright's one-year perfomnce review in Augst 2016 also do not evidence "continuing retaliatoy conduct and animus" in the period between her complaint and temination, as the issues Hilldrup raised are the sme as those identiied in her six-month review in April 2016, beore her complaints to Hilldrup's Humn Resources Deptment and the EEOC. See Francis v. Booz, Allen & Hamilton, Inc., 45 2 F.3d 299,309 (4th Cir. 2006) ("The actions that led to Fancis' probation nd temination begn beore her protected activiy, belying the conclusion that a resonable factinder might ind that BAH's activity was motivated by Fncis' USERRA complaints."). For the same reson, Wright Ms. has not presented ny evidence suicient to raise an inerence that the legiimate, non-retaliatory justiication or her temination that Hilldrup has presented, inadequate job perfomnce, a is petext or retaliation to her EEOC complaint. For these reasons, even viewing the evidence nd all reasonable inference in the light most avorble to Ms.Wiht, has not made out a prna she facie case of retaliation under the ADEA. 3. Hostile Work Environment The elements of a prima acie case of hostile work environment re: ··o) the hrassment ws unwelcome; (2) the hrassment was based on [plainti's] ...age; (3) the hrassment was siciently severe or pevasive to alter the conditions of employment and create n abusive amosphere; and (4) here is some basis or imposing liability on the employer.,' 4 Causey v. Balog, 16 2 F.3d 795, (4th Cir.1998). '·A hostile environment exists '[w]hen the workplace 801 and is pemeated with discriminatoy intimidation, ridicule, insult that is suiciently severe or 4 he Fourth Cicuit hs assumed without deciding that a hostile work environment claim is available under the ADEA. See Bqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006) (citing Burs v. AAF-McQuy, Inc., 166 F.3d 292, 294 (4th Cir. 199), and Csy, 162 F.3d at 801 n. 2). 10 pevasive to alter the conditions of the victim's employment nd create n abusive working environment."' Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (quoting Harris v. Forklt Sys., Inc., 510 U.S. 17, 21 (1993)) (altenation in original). While Ms. Wriht's complaint asserts allegations of hassment, she hs ofered no evidence suicient or a reasonable act inder to conclude that harassment did in fact occur. Even assuming she was hassed, here is no evidentiay basis rom which to infer that she ws hrassed based on her age. The record is also insuicient to establish that ny hssment was suiciently severe or pervasive. At most Ms. Wright identiies a few isolated incidents over a 10-month period; nd the Supreme Court "has stressed that 'simple teasing, ond comments, nd isolated incidents (unless exremely serious) will not amount to discriminatoy chnges in the terms and conditions of employment."' Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 298-99 (4th Cir. 2015) (quoting Faragher v. Ciy ofBoca Raton, 524 U.S. 775, 788 (1998)). For these reasons, even viewing the evidence nd all reasonable inference in the liht most favorable to Ms. Wright, she has not made out a prima acie cse of hostile work environment under the DEA. 4. Wronful Termination under Virginia Law Finally, Ms. Wright hs no claim or wrongul termination under Virginia law. As an at will employee, here is nohing in her contract that prohibited Hilldrup om teminating her. There is also no reconized Virginia common law claim or rongul temination on the bsis of age, ace, sex or other protected categories covered by the Virginia Hman ihts Act. See Conner v. Nat'l Pest Control Ass 'n, Inc., 513 S.E.2d 398, 399-400 (Va. 1999); Va. Code Ann. § 11 2.2-3903(B).5 For these reasons, Ms. Wight's Virinia state law claim or rongul temination fails as a matter of law. CONCLUSION For the above reasons, it is hereby ORDERED that nd Defendant's Motion to Dismiss Complaint or Lack of Subject Matter Jurisdiction nd Failure to State a Claim upon Which Relief Can Be Granted [Doc. No. 9] be, nd the same hereby is, GRANTED in part and DENIED in part. It is granted on the ronds that the Court does not have subject matter jurisdiction over ny Title VII claims by Plaintif nd is ohewise denied as moot; nd it is ther ODERED that Plainti's Motion or Summy Judgement nd Rebutal of Defendnt's Memoandum in Support of Motion or Summy Judment [Doc. No. 32] be, and the sme hereby is, DENIED; nd it is ther ORDERED that Defendant's Motion or Sumay Judment [Doc. No. 21] be, nd the sme hereby is, GRANTED as to Plainti's ADEA claims or discrimination, etaliation, nd hostile work enviroment, and Virginia state law claim or rongul termination; nd this case is DISMISSED. 5 The Virginia Human Rights Act provides or protections against discrimination committed by employers not covered by the fedeal discrimination laws, i.e., employes with less than 15 employees or race and sex discrimination claims nd less thn 20 or age discrimination claims. See Va Code Ann. § 2.2-3903(8), (D); see aso Jons v. Kroger Ltd P 'ship I, 80 F. Supp. 3d 709, 716 (W.D. Va. 2015); Walton v. Sch. Bd ofGloucster Cy., 4:06-cv-75, 2006 WL 3838235, at *5 (E.D. Va. Dec. 4, 2006) ("In this case, Walton cannot maintain her VHRA claim against the School Board because it is clear that the School Board has at lest iteen employees."). Ms. Wriht's Charge indiates that Hilldup employs much more thn twenty people. 12 This is a inal order for puposes of appeal. To appeal, Plaintif must ile a written Noice of Appeal wih the Clerk of the Cot within y (30) days of the date of this Order. A Noice of Appeal is a short statement stating a desire to appeal an order and identiying the date of he order Plaintif wishes to appel. Failure to ile a timely Notice of Appeal waives Plainti's right to appeal his decision. he Clerk is directed to owrd a copy of this Order to all counsel of record nd to May 23, 2017 Alexndri, Virginia 13
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