Atkins v. Fed Ex Freight, Inc., No. 3:2014cv00505 - Document 50 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/28/15. (tdai, )
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Atkins v. Fed Ex Freight, Inc. Doc. 50 IN THE UNITED f STATES DISTRICT COURT MAY 2 8 2015 1 FOR THE EASTERN DISTRICT OF VIRGINIA CLERK, U.S. DISTRICT COURT Richmond Division RICHMOND. VA PHILIP D. ATKINS, Plaintiff, Civil Action No. v. FEDEX FREIGHT, 3:14cv505 INC., Defendants. MEMORANDUM OPINION This MOTION TO matter is DISMISS before (Docket the No. Court 26) . on For DEFENDANT'S the reasons PARTIAL set forth below, this motion will be granted in part and denied in part. I. BACKGROUND a. Factual Background The facts are recited as alleged. The plaintiff is given the benefit of all permissible inferences. Plaintiff Philip Defendant FedEx Freight, Atkins Inc. ("Atkins") ("FedEx") 2009 as a Supplemental City Driver. ("SAC") (Docket No. 20) at 54. employed by beginning on October 26, Second Amended Complaint He was promoted to City Driver during the course of his employment. the SAC begin in August of 2012 when, African American truck drivers was Id. The allegations in according to Atkins, "two were discharged from employment Dockets.Justia.com as truck the that drivers two for fired drivers management [that] included Atkins." in the and had Drivers clerks FedEx" and that, white Ahit a a list' terminal Id. supervisor of management at Richmond following 55. Service other was Center incident, "informed Atkins African wanted He the to also American fire, which informed office "in by two mid-October 2012" that "service center management was searching for a way to fire him." Id. at 56. On October 17, 2012, notified Atkins Violation without Atkins on that October notifying alleges previously and Kevin Usilton, he had 16, 2012 dispatch that such that of committed "by the to a Compensated taking a had give such Id. never a Time bathroom occurrence." notification failure an Operations Manager, been break at 57. required notification had never been considered a violation of company time policy. Id. Atkins his was warned termination. Atkins' Id. that at conversation 58. with this offense Sometime Usilton, could during Atkins result the week reports Caucasian employees...who were aware of Atkins' in following that "three Compensated Time Violation informed him that they had been similarly charged with Compensated Time breaks...[and] warnings." Violations indicated Id. at 59. that for they were taking issued unauthorized mere verbal "Within October days" 2012, 17, five Atkins supervisor to Human contact Resources "advised in informed...that FedEx Action Violation, charging informing from him Action 2012, 510. the with taking Id. at American FedEx's District did training so for and time infractions...[but] was Id. received the official discussed Compensated unauthorized recommended 55 on African Atkins Atkins noting "management Id. at 513. Corrective requested 31, him employment." notice. had Usilton was couldn't train him." Form that at with an who avoid...policy On or about October Corrective Pullen, by Id. he to conversation advised Charles that order his was manager. Pullen reporting of 12-13. lunches, Atkins' Atkins Time and termination contested the In the week following the issuance of the Form, Pullen "called Atkins to advise that FedEx could not terminate him for the purported Compensated Time Violation." Id. at 514. During that conversation, Atkins informed Pullen that management had recommended his termination and that "management had similar time violations, instead of employment would investigate. On November Manager, admitting charged but three Caucasian had issued mere termination." Id. drivers with verbal warnings Pullen said that he Id. 6, 2012, Ike Fanz, a FedEx Service Center "approached Atkins and attempted to intimidate him into wrongdoing." Id. at 515. Atkins refused and Fanz stated that, while he wanted to suspend him. Id. On fire Atkins, November 9, 2013, Fanz would merely Fanz informed Atkins that he would be suspended without pay for three days. 516. Atkins contacted suspension. Id. suspension, human Adrian 517. who advised him to Atkins did appeal and, appeal at his following his returned to work "under probation" while the appeal was pending. FedEx at Pullen, Id. Id. He further states that Pullen "instructed the resources Prentiss, to officer of investigate the Richmond Atkins' Service allegations discrimination" while Atkins' appeal was pending.1 Atkins next alleges that, Center, of race Id. at 518. while his appeal was pending, he "suffered several incidents of harassment from Terrance Collins, the Assistant include incidents menacing head Service open demeanor, like a Center wherein Collins threatening pineapple Manager." to with at "confronted *split a Id. and machete'", that he was "out to get him", mocked Atkins' 519. Atkins peal These with [sic] informed a [his] Atkins hairstyle, informed Atkins that he "had previously beat a discrimination case...and that the company would fly its lawyers in on a private jet to defend him", told him not to "think about snitching," and showed 1 Atkins states that he "made his discrimination claims to Pullen and Prentiss", but it is not clear when the claims, if any, were made to Prentiss. SAC at 521. The SAC states that Pullen asked Prentiss to "investigate Atkins' allegations of race discrimination", but does not mention any conversation between Prentiss and Atkins wherein Atkins complains of racial discrimination directly to Atkins. Id. at 518. Atkins a revolver that Collins kept in his glove compartment "in case black guys like you with their dreadlocks run up on Id. [him]." at 55 19-21. "Sometime in Michael Capps, 523. December 2012" Atkins met with Collins who was an Operations Manager with FedEx. and Id. at Atkins requested to be considered for an open position and was informed that he was not eligible to apply for the position because he pending. was Id. still The on probation, as his appeal three then discussed Atkins' and Atkins informed Collins and Capps was still appeal briefly that "he was bothered by the situation because he felt he had been discriminated against and harassed been Id. and issued to at 524. get by receiving other drivers a who "Atkins corrective who action committed the that same had not action." Collins told Atkins that he was free to leave FedEx job elsewhere Atkins then started to Capps the "grabbed the felt as if if he felt that way. leave the office, handle Capps were to hold [the provoking comments or gestures toward Capps." but was Id. door] Id. 525. stopped by shut." him. ..[but] at 526. at made Id. no It appears that Capps then told Collins that he felt threatened by Atkins and Collins replied that Capps should "put it on paper, [Atkins would be]...gone." On March 5, and Id. at 526. 2013, Atkins was informed that the appeal had been resolved in his favor and that he would receive three days of back pay from his suspension.2 Atkins, days, Id. "[t]he but customary [his] at 522. Id. decision decision wasn't at 527. time made for for During those four months, According to an appeal nearly four was 10 months." Atkins was not eligible for many promotions and transfer opportunities because he was on probation. Id. On March 7, 2013, Collins approached Atkins, "chided him in the presence of other employees for prevailing in appeal. .. [and] his menacingly, return to xthis grabbed. ..Atkins isn't over.'" work after March Id. 7 and long term disability benefits." by at the 528. and Atkins "applied for Id. at 532. arm and was did said not awarded On March 11, 2013, Atkins complained about his March 7 encounter with Collins in a written statement to FedEx. by a FedEx "informed employee about [that employee] Id. the of the at 529. incident Atkins was on March interviewed 12, 2013 and race discrimination behind the termination resulting from the Compensated Time Violation."3 Id. at 531. 2 The SAC does not disclose what the grounds of the appeal or the reversal were. 3 Although Atkins claims to have been terminated from his employment at FedEx in several places in the SAC, the facts alleged therein do not support that statement. Rather, it appears that Atkins was suspended without pay for three days as a result of the Compensated Time Violation. b. EEOC Charge On March 20, 2013, Atkins filed a Charge of Discrimination against FedEx with the Equal Employment Opportunity Commission. Docket No. 27-1 at 3.4 In that charge, Atkins checked the boxes for discrimination based on race, Id. retaliation, and disability.5 His statement of the charge reads as follows: 1. I was hired on October 26, 2009, as a Supplemental City Driver. I progressed to City Driver. On November 12, 2012, I received a critical warning and was suspended for three days. This disciplinary action resulted occurred on from October 16, an incident 2012. On that November 26, 2012, I filed an internal appeal on the disciplinary action. Because of the disciplinary action on my record, I could not apply for promotions for one hundred and eighty days (180). In December 2012, I could not apply for the position of Road Driver (Maryland) and Senior Driver (Richmond). Also in December 2013, I was passed over for better paid road assignments. On March 5, 2013, I was notified that my that my [sic] 4 The Court can consider this document when ruling on a Motion to Dismiss because it is integral to, and explicitly relied upon, in the SAC. Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999) ("Plaintiffs cannot prevent a court from looking at the texts of the documents on which its claim is based by failing to attach or explicitly cite them.) Further, while Atkins did not attach the EEOC Charge of Discrimination to his Complaint, FedEx is entitled to attach the document Motion to Dismiss because it was referred to in the SAC. to its Gasner v. Cnty. Of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995) ("[W]hen the plaintiff fails to introduce a pertinent documents as part of his complaint, the defendants may attach the document to a motion to dismiss without converting the motion to one for summary judgment.") 5 Atkins does not make any claims based on disability in any of his complaints in this Court. critical warning and suspension was reduced to a written warning and I was compensated for the suspension. On March 7, 2013, I was physically assaulted and verbally threatened by Terrence Collins, Assistant Service Center Manager. On March 8, 2013, I filed a complaint against Mr. Collins. On March 11, 2013, I met with Norm Cullens, Security Officer, and Adrianne Prentiss, Human Resources Representative, regarding my complaint against Mr. Collins. On March 12, 2013, my physician took me out of work. On March 13, 2013, I requested Family and Medical Leave. On March 16, 2013, Mr. Cullens stated the investigation in to my complaint concluded to be false. Also on March 18, 2013, Kim Morris, Director, Human Resources, informed me that my short term disability was pending awaiting a statement from my physician. 2. On Center October 17, 2012, Ike Fanz, Service Manager, stated that he had recommended that I be compensated time violation October 16, 2012. discharged that occurred for on 3. I believe I was disciplined more severely than my White co-workers, and passed over for better paid road assignments because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended. against by I also believe being I was retaliated physically verbally threatened in 704a of the same Act, assaulted and violation of Section and in violation of the Americans with Disabilities Act of 1990, as Id. at 3-4. c. On amended. Complaint and Procedural Background August Docket No. 4. 6, 2014, Atkins The Complaint was 8 filed his initial Complaint. amended twice and the current operative complaint is the SAC. Docket presents four counts against FedEx. Discrimination count, in Violation of No. 20. The SAC Count I is a claim for Race Title VII. SAC at 9. In this Atkins claims that FedEx subjected him to "discrimination in the terms and conditions of his employment on account of his African American employment race...by discipline subjecting for engaging [him] in to more severe conduct... for which Caucasian employees were not terminated when they committed the same violation." Id. at 542.6 A claim of this sort is commonly referred to as a "disparate discipline" claim. Count Title VII. [him] to II alleges Id. at on [sic]...in direct Count III Atkins Atkins that, discipline, his violation "[b]y physical distress to in and subjecting assault mental complaining against of and anguish of race him for engaging in Id. at 544. a claim of race harassment "to in violation Under this Count, Atkins alleges that pervasive and environment Service Terminal, retaliation claims retaliated Id^ at 10. subjected him work in response alleges of Title VII. of emotional FedEx protected activity." 6 Again, 10. him discrimination, hostile claim discrimination inflicted FedEx a from his severe harassment superiors at the and a Richmond on account of his African American race." claims he Compensated Time Violation, was terminated as a result of Id. his but it is clear from the SAC that he was only suspended for three days without pay. 9 at 546. Claims of this sort are referred to as "hostile work environment" claims. Finally, in Count IV, Atkins makes Infliction of Emotional Distress, Id. at Intentional in violation of Virginia Law. 11. FedEx Civ. a claim of seeks P. 12(b)(1) 12(b)(6). dismissal of Counts II and III based on Id. R. R. Civ. and dismissal of Count II under Fed. Fed P. This motion is ripe for decision. DISCUSSION I. The Rule 12(b)(1) Motion to Dismiss (Failure to Exhaust Remedies) FedEx Fed. R. Civ. properly subject This to P. so, II) seeks dismissal 12(b)(1). exhaust matter is (Count firsts his It FedEx, and hostile on Counts alleges remedies, jurisdiction says of as this because that is Court the work environment II and Atkins (Count confer VII of failed to Title charges under has required in III cases. retaliation III) could not conceivably be thought to fall within the charges as described in Atkins' EEOC charge. b. Standard If a federal court finds that is does not have subject matter jurisdiction over a case or controversy, the motion. Arbaugh v. Y & H Corp., 10 546 U.S. it must dismiss 500, 514 (2006). Thus, whether there is subject matter jurisdiction, the Rule 12(b)(1) motion, must be addressed first. "Before a Title VII must file an future litigation. the initial complaint, and [EEOC]. those those lawsuit.'" 506 (4th Cir. 80 Chacko 2005) F.3d charges reasonably v. by 964, that related 963 to Employment in Evans v. (4th Cir. the original a subsequent Title Techs. 1996)). 429 F.3d 505, Applications "If ^the & claims exceed the scope of the EEOC charge and would naturally have arisen from they are procedurally barred.'" 55 F.3d 151, Id. 156 charge of discrimination generally operate limit the scope of any subsequent judicial complaint." 80 F.3d at 962-63. an at (4th complete the It is "clear that must to Evans, "At the same time, however, lawyers do not administrative construe them liberally." litigation of For that reason, the "allegations contained in the administrative typically he investigation Institution, (quoting Dennis v. County of Fairfax, Cir. 1995)). Equal reasonable Patuxent (quoting investigation thereof, 509 the suit, This charge frames the scope of developed raised under Title VII any with complaint may be maintained VII Co., charge formal *Only those discrimination claims stated in charge, the original Serv. plaintiff can bring a administrative Opportunity Commission as raised in Chacko, the correspond 11 and so courts made in formal 429 F.3d at 509. factual to charges, allegations those set forth in the administrative charge." Id. In other words, "[a] claim will...typically be barred if the administrative charges alleges one type of discrimination - such as discriminatory failure to promote - and the discrimination in claims encompasses another pay and benefits." Id. type - such Additionally, as "the allegation of a discrete act or acts in an administrative charge is insufficient when the plaintiff broader pattern of misconduct." Thus, "[a] or Transp., practices Inc., (internal the a Id. parties, complained 969 F. quotations and to describe generally the of." Supp. 2d Baiden-Adams 422, omitted). 427 However, allegations in the administrative charge are to alleges charge is acceptable only if it is sufficiently precise to identify the action subsequently factual allegations the 2013) factual reasonably related connection between the charge and the claim is sufficient." Id. (emphasis the test for formal "if Va. the The the (E.D. Forsythe litigation, added) in v. determining whether administrative charge and the complaint are "reasonably related" is whether or not a "reasonable administrative charge allegations set forth in formal litigation." at would have investigation 509. b. Retaliation - (i) Count II Parties' Arguments 12 uncovered the Chacko, [the] of factual 429 F.3d Although FedEx acknowledges that: states that he was (1) retaliated against/ box marked "retaliation" on the EEOC Atkins' and (2) charge EEOC charge he form, checked the Atkins' EEOC charge was insufficient to exhaust any retaliation claim because it failed to identify whatsoever...[and], even if activity in his EEOC charge, underpinned by the kind "any protected Plaintiff identified FedEx Atkins' also EEOC of this contends charge, states point, that as assaulted FedEx he and protected ^broader pattern of misconduct' Docket No. 27 at 429 F.3d at 509). that was no reasonable presented, events on which he bases his On a his subsequent retaliation claim is prohibited by the Fourth Circuit in Chacko." 13 (citing Chacko, activity would have uncovered retaliation claim in the SAC. acknowledges "retaliated verbally investigation into that Atkins' against threatened", by but EEOC being argues the Id. charge physically that Atkins "presently underpins his retaliation claim with a broader set of facts...[that were] discrimination distress and never presented to the EEOC in discipline; mental discrimination." (b) anguish; Id. at and 14. the infliction (c) Thus, a [namely]: of emotional complaint says (a) FedEx, of race Atkins "presented the EEOC with neither the alleged protected activity nor most of the alleged adverse employment actions about which he now complains." Id. 13 Atkins does not directly address Count II in his response. Docket No. that the scope 30 at 4. "claims of his Instead, in this original he makes the conclusory assertion litigation charge [and are a] 11 entirely of the within claims the he is bringing to this Court would have been uncovered in a reasonable investigation of the charge." Id. at 7.7 (ii) Analysis "A plaintiff must exhaust administrative remedies to bring suit on a claim of exhaustion requirement sufficient charge retaliation....One for a means retaliation specifically of meeting claim is identifying the by the filing retaliation. a A plaintiff may also bring a claim of retaliation not explicitly contained in the EEOC charge where that claim of retaliation was a *kind of contained during discrimination like the growing in the pendency Baiden-Adams, Portfolio 969 Recovery F. of or the Supp. Associates, case 2d at LLC, related out of before 431 682 to allegations such the commission.'" (quoting F. Supp. allegations Johnson 2d v. 560, 573 EEOC charge states that he "believe[d that he] was (E.D. Va. 2009) Atkins' charge or (emphasis added)). retaliated against by being physically assaulted and verbally 7 This kind of broad statement is not only poor advocacy, but it also poses the risk that the client's complaint can be dismissed. But, because the EEOC charge is to be liberally construed, the Court must make the requisite analysis, notwithstanding the poor advocacy. 14 threatened"; appeal; describes the course of his disciplinary action and and mentions the March 7, 2013 incident in which Atkins states he was Terrance "physically assaulted and Collins." checked the box 3. However, Docket No. verbally threatened by 27-1, at 3-4. Atkins for discrimination based on retaliation. also Id. at the EEOC charge does not contain any allegation of relevant protected activity.8 In the SAC, Atkins alleges discrimination in discipline, him to emotional distress his complaining of that [him] to physical assault and inflicted on and mental race FedEx "subjected anguish...in direct discrimination." SAC at response SI44. He also identifies four instances of possible protected activity in the SAC. First, Atkins states that he spoke with Charles Pullen and him told that, while terminal management had recommended Atkins' termination, management "had issued mere verbal warnings instead of with employment similar states time that, termination" violations. "during the for Id. three at pendency Caucasian 514. of the Second, appeal, instructed...Adrian Prentiss to investigate Atkins' 8 The against EEOC charge Collins on does March state that 8, 2013 Atkins and investigators regarding that complaint. protected activity Atkins' complains, occurred it is that drivers Atkins Pullen allegations filed a complaint he met However, with FedEx because that after the "retaliation" of which not sufficient to establish an allegation of protected activity for the purpose of this motion. Docket No. 27-1 at 3-4. 15 of race discrimination." while the by appeal mocking Id. at was pending Collins Atkins' hairstyle, he kept "in case black guys up on" December Third, 2012 that he asserts harassed him, that that, inter alia, he had beat alleges "was a and showing Atkins a pistol that like you with their dreadlocks Atkins he And, mentioning discrimination case previously, me. 518. that bothered he by told [the run Collins in disciplinary] situation because he felt that he had been discriminated against and harassed Finally, by Atkins receiving states the that corrective he "gave action." a written Id. at 524. statement to FedEx about the...physical altercation by Collins" and "informed [Norm Cullen] resulting of the from the race discrimination the the Compensated Time Violation" 2013, after he left work at FedEx. Whether behind EEOC charge retaliation allegations in the termination on March 11-12, Id^ at 529-30. can be SAC said to is a close encompass call. the However, careful comparison of the EEOC charge with the SAC reveals that the allegations in the EEOC charge are sufficiently related to those in the SAC that a reasonable investigation into the EEOC charge would complains in have the uncovered SAC. The the retaliation EEOC charge of which explicitly Atkins mentions Atkins' complaints about discriminatory discipline and promotion practices at FedEx, his March 7 altercation with Terrance Collins, and that he spoke with Adrianne Prentiss regarding his 16 March Mr. 11 complaint. Prentiss, Atkins' it Docket No. reasonable is 27-1. to If the EEOC spoke with believe that the topic of complaints of racial discrimination would come up in the EEOC investigation because Prentiss complaints at the behest of Pullen. investigated This would provide the EEOC with the alleged protected activity. Also, at least one form of the retaliation that Atkins alleges in his complaint 7 altercation with Collins) is those (the March explicitly included in the EEOC charge as well. Thus, allow a basis of Rule the EEOC reasonably Atkins' 12(b)(1) charge provides thorough retaliation EEOC sufficient investigator allegations. motion to dismiss Count information to uncover Therefore, II of the to the FedEx's SAC for lack of subject matter jurisdiction will be denied. c. Racial Harassment/Hostile Work Environment [Count III] (i) Parties' Arguments FedEx argues that Count III must be dismissed for lack of subject matter jurisdiction because Atkins' "EEOC charge alleged only race discrimination retaliation based ADA...[and] on race, based and on disparate retaliation treatment, pursuant to the was entirely devoid of any reference to harassment or a hostile work environment factual allegations claim." Docket No. and lacked any of the myriad underpinning his 27 at 10. In short, 17 present race harassment FedEx alleges that Atkins' claims of racial harassment in the form of a hostile work environment in Count III are predicated not on what Atkins believes was discriminatory discipline, pattern of interactions with Collins are detailed in the complaint. allege that Atkins' these race retaliation in for discrimination, to his and other managers which took the place, and discipline complaints to only he Pullen mentions received about and racial FedEx argues that the EEOC charge cannot be said encompass Atkins' claim to and Because the EEOC charge does not interactions relation but instead only on the thus racial this harassment/hostile work environment Court does not have subject matter jurisdiction over it. Atkins opposes FedEx's motion. "the allegations sufficiently of related race to No. 30 at 6. was discrimination race environment for [Count III] In doing so, he argues that in harassment the or charge hostile to proceed to litigation." are work Docket He points out that his EEOC charge alleges that he "disciplined more severely" than his white co-workers and that he was "retaliated against by being physically assaulted and verbally threatened" and he argues that these statements were related enough to the factual allegations involving Collins and other managers that the allegations in the SAC would have been developed charge. by a reasonable Id. 18 investigation into the EEOC (ii) Analysis "The Fourth Circuit has consistently held that a plaintiff s claim exceeds the scope of the EEOC charge where the charge alleges introduces Supp. another 2d at district one 428. courts basis of discrimination independent To that have disparate reasonably related end, found treatment basis." the that a EEOC charge of litigation Baiden-Adams, Fourth Circuit charges discrimination to and or that and F. and several allege retaliation harassment 969 only are not hostile work environment such that an investigation of the EEOC charge would uncover evidence claim. For example, Fourth Circuit of the harassment or hostile work environment in Taylor v. Virginia Union University, upheld the dismissal of the plaintiff's the sexual harassment claim, finding that, though the EEOC charge described her boss calling her at home, touching her arm, and telling her that he hired her sufficiently allege Cir. 1999) (en because sexual he liked harassment. banc)(abrogated on Palace, Inc. v. Costa, 539 U.S. 90, Court of Appeals charge her, 193 such facts F.3d 219, other 98-99 grounds (2003)). found that "even construing liberally]", she did not exhaust her did 239 by not (4th Desert Further, the [plaintiff s EEOC sexual harassment claim because the actionable portion of her charge only related to gender discrimination also Baiden-Adams, 969 F. for a failure to promote. Id. See Supp. 2d at 429-30 (granting a motion 19 to dismiss for harassment claim discharged due failure raise"); Supp. when to Logan v. 60, 61 to the race exhaust EEOC and the charge sex plaintiff's alleged "after sexual that asking she was a pay about Colonial Williamsburg Hotel Properties, (E.D. Va. 1996) 941 F. (granting a motion to dismiss for failure to exhaust when the plaintiff s EEOC charge claimed sex discrimination but the plaintiff sued on a sexual harassment theory). Atkins' EEOC charge written warning and was "passed over for alleges that he "received suspended for three days", better paid road a critical that he assignments", that was he was "physically assaulted and verbally threatened [on March 7, 2013] by Terrance March It 7, also Collins;" 2013 and that interaction with alleges that he filed a Collins. Atkins and that he was threatened in retaliation. describe any of the physically Id. at 4. other Docket believed disproportionately disciplined and not race complaint suffering Additionally, charge arises from a that assaulted at he and of the context of promotion by FedEx. 20 3. was his verbally between hostile Atkins and it allege that he work environment. the only explicit mention of race in Atkins' in the The EEOC charge does not interactions racially 27-1 promoted because Collins that he alleges in the SAC, nor does was No. about discriminatory discipline EEOC and That, however, does not end the inquiry because it is next necessary to apply the so-called "reasonable investigation test" for assessing the relation between charges presented to the EEOC and those easily But, made in articulated, what seems to a complaint but be is filed somewhat clear is in court. difficult that charges That of test is application. presented to the EEOC are to be judged with lenity when making that comparison. Here, but Atkins' does EEOC charge outlines not described. specifically However, link a hostile work environment, race to the environment the SAC is laden with recitations of racial slurs and disparate discipline said to have been racially based. And, of there is the allegation that management wanted to get rid Atkins, as it had other black drivers. A reasonable investigation of Atkins' specific charges would necessarily have focused on the environment in which Atkins his more specific EEOC charges arose. the extensive allegations worked and Consequently, in which based on of race-based employment actions and other race-based conduct in the EEOC charge and the allegations of workplace hostility in the SAC, it is reasonable to expect that have the EEOC investigation would unearthed the hostile work environment (if there was one). Therefore, the hostile work environment claim in the SAC is reasonably related to the EEOC charge, and thus there is subject 21 matter jurisdiction. under Rule 12(b)(1) II. Hence, the motion to dismiss Count III will be denied. The 12(b)(6) Motion to Dismiss Atkins' Retaliation Claim Having found that there is subject matter jurisdiction over Count II (the retaliation consider the Rule 12(b)(6) at claim) , it is appropriate motion filed by FedEx. now to Docket No. 27 14. a. Standard Rule 12(b) (6) permits a party to move for dismissal of a claim if the complaint fails "to state a claim upon which relief can be granted." complaint Fed. contain illustrating "a that R. short the Civ. and P. plain pleader is 8(a) (2) requires statement entitled to of that the a claim" relief. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, true, that is plausible 662, 678 (2009) 544, 570 (2007)) . Courts Complaint accepted are are on as its (quoting to and Bell Atl. assume true, face.'" that must all deny to *state Ashcroft Corp. a v. v. Rule Iqbal, Twombly, well-pled a claim to relief 556 U.S. 550 allegations 12(b)(6) U.S. in motion a to dismiss where the well-pled allegations state a plausible claim for relief. Id. at 67 9. A claim is "plausible" when the plaintiff pleads facts sufficient to allow the court to draw the 22 reasonable inference that alleged misconduct. the Twombly, defendant 550 U.S. is at liable 556. A for court the should grant a motion to dismiss where the allegations are nothing more than legal conclusions, or where they permit a court to infer no more than a possibility of misconduct. See Iqbal, 556 U.S. at 678-79. Under the Iqbal and Twombly standard, Atkins bears the burden of alleging facts sufficient to state all elements of his retaliation claim.9 The elements Title VII "(1) that (2) activity, are: that an against [the between the action." Laughlin Authority, & Elec. 519 U.S. 818 engaged in employment action and (3) that was activity and v. there the Metropolitan 149 F.3d 253, 258 Baltimore Gas denied, [the plaintiff] adverse plaintiff] , protected of a retaliation claim under CO., (4th Cir. 77 F.3d was Washington 754 taken causal adverse 1998) 745, a protected link employment Airports (citing Hopkins v. (4th Cir.), cert, (1996)). 9The parties disagree about the appropriate standard to apply to FedEx's 12(b)(6) motion. However, Atkins' argument is based on Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), an out-of-date case that has been effectively overruled by the Supreme Court. See Francis v. Giacomelli, 588 F.3d 186, 193 ("The standard that the plaintiffs quotes from Swierkiewicz, however, was explicitly overruled in Twombly, 550 U.S. at 562-63 (noting that this standard, first articulated in Conley v. Gibson, 45046 (1957), 'has earned its retirement.'")). 23 355 U.S. 41, b. Analysis FedEx argues that Atkins "fails to link his alleged protected activity to the alleged adverse employment actions to which he was subjected...[and therefore] causation 15. element of his retaliation claim." Docket No. 27 at Although FedEx is correct in stating that Atkins does not explicitly allege a causal and has not established the the retaliation of link between his which he protected activity complains, it ignores that Atkins has alleged several facts that could reasonably support a causal connection as to Count some of his retaliation allegations in II. Atkins allegation has alleged between altercation with facts his sufficient protected Collins. evidence" in the SAC that activity Atkins allows to also for a has support and his offered reasonable a causal physical "additional inference of a causal connection between the alleged protected activity and the alleged retaliation. with Collins Atkins has explicitly tied his altercation to Collins' anger with his appeal and being reimbursement at 528. While appeal was SAC does about months the SAC premised on explicitly what Atkins before the does not Atkins [sic] allege believed SAC specifically that the race discrimination, the that Atkins was racial altercation. 24 The in his lost wages." assert a complaint of "for prevailing complained to Collins discrimination SAC also alleges a few that Charles Pullen advised Atkins to appeal his three-day suspension in the days following Atkins' the two men discussed conversation with Pullen in which disparate discipline. supports an inference that the appeal was, Further, the SAC alleges that Atkins This, in fact, spoke if proved, race-based. with Collins and informed Collins that he felt he "had been discriminated against and harassed by receiving the corrective action." Collectively, these facts reasonably support the there was a causal connection between Atkins' (i.e., speaking complains of dismiss with Pullen and retaliation claim altercation with Terrance Collins respect discipline, Atkins' to FedEx is protected activity Thus, on the SAC alleges allegations is asserting occurred that behavior he the motion to the March before Atkins of that 7, 2013 retaliatory of the received he initial Corrective Action Form on October 31, However, the is denied. Atkins' correct based inference that protected activity and (being assaulted by Collins). Atkins' With Collins) SAC at SI24. none the 2012. complained SAC at 112. about racial discrimination to Charlie Pullen "sometime during the following week" this [after Atkins was November protected before 13, the final 2012. activity Action Form was received the Corrective Action Corrective Thus, that the occurred issued. 25 SAC Action Form was actually before Form and that the does final issued on allege a Corrective When Atkins received the original Corrective Action Form on October 31, 2012, it stated that "management recommended Atkins' termination employment." from Id. at 512. However, the SAC alleges that the discipline actually imposed as a result of the Corrective Action Form was a three-day suspension without pay. Id. at that 516. The ultimate discipline was much recommended by management before Atkins' Pullen. Thus, whatsoever on significantly. if his Atkins' protected discipline, it For that reason, in discipline. support this contention. had reduce any its effect severity says FedEx, Atkins has alleged no plausible basis for causation as discrimination to harsh than conversation with activity was less it relates to his claims of FexEx offers no authority to Nor could the Court locate any. Under the facts alleged in the SAC, it is plausible that the decision to impose even the lesser decision was casually connected to the protected activity. Therefore, the motion to dismiss Count II as to the retaliatory discipline will be denied. Finally, the Rule 12(b)(6) motion will be granted in part with respect to Atkins' distress and mental that "by subjecting him to...emotional anguish,... in direct response to his complaining of racial discrimination...FedEx retaliated against him." While not elaborated on in Count II, describes exactly what events caused Atkins' and mental anguish." In the SAC, 26 Atkins the SAC elsewhere "emotional distress alleges that his emotional distress and mental anguish came "as a result of being placed on a 'hit list' over his race, against of on account complaining of the his race being discrimination race, retaliated discrimination, finally being assaulted." being [sic] against for harassed and Id. at 531. As alleged in the SAC, Atkins was notified of his presence on management's "hit list" in August 2012. Id. at 55. well before the first alleged protected activity, in November 2012. causal Id. at 514. connection presence on a between "hit motion to dismiss list" virtue of granted. being his protected August distress placed on the of Count and his Accordingly, the claim as to retaliation and emotional so-called II activity 2012. for failure to state a remainder The which occurred Thus, Atkins has not pleaded any in by the infliction of mental That is "hit passes anguish by list" muster will under be Rule 12(b) (6) . CONCLUSION For MOTION TO the reasons DISMISS set forth (Docket No. above, the 26) will be DEFENDANT'S PARTIAL granted in part and denied in part. It is so ORDERED. /s/ Robert E. Payne eif Senior United States District Judge Richmond, Virginia Date: May 22 , 2015 27
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