Watson v. Virginia Department of Agriculture And Consumer Services

Brief in Support to 6 MOTION to Dismiss Plaintiff's Amended Complaint with Roseboro,.

E.D. Va.March 2, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division SHENIQUA L. WATSON, Plaintiff, v. Civil Action No.: 3:16-CV-00985-MHL VIRGINIA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Defendant. DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT The Defendant, Virginia Department of Agriculture and Consumer Services (“VDACS” or “Defendant”), by counsel, pursuant to Federal Rules of Civil Procedure 8(a), 10(b), 12(b)(1), and 12(b)(6), submits the following Brief in Support of Motion to Dismiss, and requests dismissal, with prejudice, of the Amended Complaint filed by the plaintiff, Sheniqua L. Watson (“Plaintiff” or “Watson”). I. INTRODUCTION At all times relevant to this Amended Complaint, Plaintiff was an employee at VDACS, where she is still currently employed. On December 15, 2016, Watson filed a motion to proceed in forma pauperis in this Court. (See Dkt. 1). Watson attached both a handwritten document and a typed document to the motion. (See Dkt. 1-2, Pg. ID# 11-14 and 1-5, Pg. ID# 17-21). On February 9, 2017, the Court granted Watson’s motion and directed the clerk to file the “Amended Complaint” (the typed document). (See Dkt. 3, Pg. ID# 25-29). 1 The Amended 1 Watson does not identify either document as a Complaint or an Amended Complaint. In fact, in the document the Court refers to as the “Amended Complaint,” Watson states simply that she “would like to file a race discrimination, retaliation, unequal/unfair pay, slander/libel and unfair/wrongful demotion lawsuit” against VDACS. (See Dkt. 3, Pg.ID# 25). Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 1 of 20 PageID# 42 2 Complaint was filed the same day. II. PLAINTIFF’S FACTUAL ALLEGATIONS 2 Watson alleges her employment with VDACS started in May 2005. In April 2009, she became a full time Certification Specialist in the Office of Pesticide Services. In January 2013, she applied and was interviewed for a position as a Registrations Analyst but did not get the job. Watson alleges that during this time, she did not receive adequate support and that she was retaliated against after she inquired about several issues, including the lack of support, her salary, and an incident involving another employee. On January 13, 2014, Watson transferred into the Office of Charitable and Regulatory Programs as a Registration Analyst. Watson alleges that in October of that year she met with Michelle Townsend to discuss her performance. Watson was informed that her “employee work profile had been adjusted with changes in [her] task[s].” (See Dkt. 3, Pg.ID# 25). Watson alleges that she was demoted although her title and salary remained unchanged. She further alleges that Townsend retaliated against her after she grieved the “demotion.” Watson is currently still employed at VDACS in her same position. Finally, Watson alleges that her salary is less than several unidentified Caucasian co-workers. 3 III. STANDARDS OF REVIEW A. Federal Rules of Civil Procedure 8(a) and 10(b) Rule 8(a) of the Federal Rules of Civil Procedure requires a pleading stating a claim for relief to contain: “(1) a short and plain statement of the grounds for the Court’s jurisdiction, 2 For the purposes of this Motion to Dismiss, the facts alleged by the Plaintiff are assumed to be true. Defendant reserve the right to dispute any factual allegation alleged in the Amended Complaint in the future. 3 Two of the five-page “Amended Complaint” discusses issues pertaining to other current or former employees at VDACS and are not relevant for purposes of this Motion to Dismiss. Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 2 of 20 PageID# 43 3 unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may involve relief in the alternative or different types of relief.” A pleading is also required to state “claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). B. Federal Rules of Civil Procedure 12(b)(1) Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to move to dismiss an action for “lack of subject matter jurisdiction.” Allen v. Coll. of William & Mary, 245 F. Supp. 2d 777, 782 (E.D. Va. 2003); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); White v. CMA Const. Co., Inc., 947 F. Supp. 231, 233 (E.D. Va. 1996). “The burden of establishing the existence of subject matter jurisdiction rests upon the party which seeks to invoke the court’s authority.” Allen, 245 F. Supp. 2d at 782. “For motions made pursuant to Federal Rule of Civil Procedure 12(b)(1), the evidentiary standard depends upon whether the challenge is a facial attack on the sufficiency of the pleadings, or an attack on the factual allegations that support jurisdiction.” Id. at 782-83 (internal quotation omitted). Specifically, “[i]f the defendant is attacking the sufficiency of the complaint, the court must accept all of the complaint’s factual allegations as true.” Id. at 783. By contrast, “if the defendant claims that the jurisdictional facts alleged in the complaint are untrue, the pleadings are regarded as mere evidence. The court then weighs the pleadings and all of the other evidence to determine whether subject matter jurisdiction exists.” Id. (internal citation omitted). C. Federal Rules of Civil Procedure 12(b)(6) and the “Plausibility” Standard Under Twombly and Iqbal Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Specifically, “[t]he Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 3 of 20 PageID# 44 4 function of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint.” Allen, 245 F. Supp. 2d at 783 (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). In the past, a plaintiff could assert that a court should grant a Rule 12(b)(6) motion only if “it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 243-244 (4th Cir. 1999). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), however, the Supreme Court of the United States rejected the so-called “no set of facts” test. Accordingly, a court must now examine a complaint to determine whether a plaintiff has alleged sufficient facts to make a particular cause of action “plausible.” Specifically: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . , a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Id. at 555 (citation omitted). Thus, a complaint must provide a defendant more than mere “notice” of those claims that a plaintiff may bring against it: Rule 8(a)(2) still requires a ‘showing’, rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests. Id. at 555 n.3 (citing 5 Wright & Miller, Federal Practice and Procedure § 1202, at 94, 95 (“Rule 8(a) ‘contemplates the statement of circumstances, occurrences and events in support of the claim presented’ and does not authorize a pleader’s ‘bare averment that he wants relief and is entitled to it’”)). Importantly, the plausibility standard is not a probability requirement, but it does require more than a mere possibility that a defendant has acted unlawfully. Id. at 556. In Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 4 of 20 PageID# 45 5 Iqbal, the Supreme Court stated that this plausibility standard applies to “all civil actions and proceedings in the United States district courts.” Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “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.” Id. “Generally, for purposes of evaluating a motion to dismiss under Rule 12(b)(6), the court is limited to a review of the allegations in a complaint.” Robinson v. Ladd Furniture, Inc., No. 92-2286, 1993 U.S. App. LEXIS 14252, at *8 (4th Cir. June 14, 1993). (Citation omitted). Nevertheless, a court is permitted to take judicial notice of pleadings filed in the public record. Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986). Furthermore, non-judicial records outside the complaint may also be considered under Rule 12(b)(6). For example, “the complaint [may also be interpreted to] include[] any document which is attached to it as an exhibit or incorporated into it by reference.” Robinson, 1993 U.S. App. LEXIS 14252 at *8-9 (citation omitted). IV. ARGUMENT The Court should dismiss Watson’s Amended Complaint because it fails to comport with the federal pleading requirements. The Amended Complaint should also be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because Watson fails to establish the Court’s jurisdiction, the Defendant has Eleventh Amendment immunity, one of her claims is time-barred and she failed to exhaust her administrative remedies. Even if the Court finds that Watson’s pleading comports with the federal pleading requirements and that it has jurisdiction, the Amended Complaint should still be dismissed pursuant to Rule 12(b)(6) because Plaintiff Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 5 of 20 PageID# 46 6 fails to state a claim upon which relief can be granted. For these reasons, as discussed in more detail below, Watson's Amended Complaint should be dismissed in its entirety and with prejudice. A. The Complaint Fails to Comport with Federal Pleading Requirements. The Complaint in the instant case fails to comply with the requirements of Rules 8(a) or 10(b) of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules of Civil Procedure require a pleading stating a claim for relief to contain: "(1) a short and plain statement of the grounds for the Court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may involve relief in the alternative or different types of relief." Similarly, Rule 10(b) of the Federal Rules of Civil Procedure requires that, "[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Although pro se complaints are afforded a liberal construction, “our task is not to discern the unexpressed intent of the plaintiff but what the words in the complaint mean.” Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006). “Though [pro se] litigants cannot, of course, be expected to frame legal issues with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never fairly presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th Cir. 1985). Thus, the mere assertion of a federal claim does not confer subject matter jurisdiction under § 1331. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). The Amended Complaint in this case fails to meet at least two of the requirements of Rules 8(a). Watson does not even identify the document as a Complaint or an Amended Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 6 of 20 PageID# 47 7 Complaint. Instead, the pleading appears to be a correspondence informing the Court of her desire to file a complaint. That aside, the pleading clearly does not include a short and plain statement of the grounds for the Court's jurisdiction, nor does she include a demand for the relief she is seeking. Watson also fails to comply with Rule 10(b) because she fails to state her claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. Indeed, the Amended Complaint amounts to a “shotgun pleading,” in which Plaintiff sets forth facts and allegations but fails to organize her allegations into counts or claims. “Shotgun pleading is ‘[a] complaint that fails to articulate claims with sufficient clarity to allow the defendant to frame a responsive pleading.’” SunTrust Mortg, Inc. v. Old Second Nat’l Bank, No. 3:12cv99, 2012 U.S Dist. LEXIS 65932 at *9 (W.D. Va. May 10, 2012) (quoting Lampkin-Asam v. Volusia County Sch. Bd., 261 F. App’x 274, 277 (11th Cir. 2008)) (additional citations omitted). “‘Pleadings of this nature are prohibited by Rule 8(a)(2), which requires . . . ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Id. at *10 (quoting Fed. R. Civ. P. 8(a)(2)) (also citing JPMorgan Chase Bank, N.A. v. Hayhurst Mortg., Inc., No. 10-21501, 2010 U.S. Dist. LEXIS 74881 at *2 (S.D. Fla. July 26, 2010) (noting that a shotgun pleading can also violate Rule 10(b)). As a consequence, VDACS is left to speculate what causes of action Watson actually intends to pursue and the facts to support each cause of action. In addition, VDACS has no idea what type of relief Watson is seeking. In light of the foregoing, the Amended Complaint must be dismissed as violative of both Fed. R. Civ. Pro. 8(a) and 10(b) as, among other things, it is so deficient that it is speculative for the Defendant to properly respond to it. Due to this failure and the additional defects in the claims as discussed below, the Amended Complaint should be Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 7 of 20 PageID# 48 8 dismissed, with prejudice. B. Plaintiff’s Amended Complaint Should be Dismissed Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure Because the Court Lacks Subject Matter Jurisdiction. 1. Plaintiff Does Not Plead Allegations in the Amended Complaint to Establish this Court’s Jurisdiction. Even if the Court liberally construed Plaintiff’s Amended Complaint to somehow meet the federal pleading requirements, it should still be dismissed pursuant to Rule 12(b)(1) because Plaintiff does not establish that this Court has jurisdiction. Watson fails to plead any allegations in her Amended Complaint to establish that this Court has subject matter jurisdiction. 4 “The district courts shall have original jurisdiction over civil cases “arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. “‘Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.’ Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Kramer v. Va. State Court Sys., No. 6:13cv0007, 2013 U.S. Dist. LEXIS 12538, *6 (W.D. Va. Jan. 30, 2113)(“[F]ederal courts are without power to entertain claims otherwise within their jurisdiction if they are so attenuated and unsubstantial as to be absolutely devoid of merit…”). It is impossible to determine whether the Court has jurisdiction over this matter since Watson failed to cite any particular law that was violated. It is Plaintiff’s burden to establish jurisdiction. Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., 523 F.3d 453, 459 (4th Cir. 2008). Nowhere in Plaintiff’s Amended Complaint does she allege Defendant violated any 4 Although Watson alleges in her Amended Complaint that she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC Charge”) in February 2015 and received a notice of right to sue on September 28, 2016, she fails to allege the statute(s) Defendant violated. Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 8 of 20 PageID# 49 9 constitutional or federal provision or law. As such, Watson has failed to establish that this Court has jurisdiction, and her Amended Complaint should be dismissed. 2. The Defendant Has Eleventh Amendment Immunity from these Claims. The Eleventh Amendment provides: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. U.S. Const. amend. XI. The question of whether a state agency has Eleventh Amendment immunity is properly brought pursuant to Rule 12(b)(1). Haley v. Commonwealth of Va. Dept. of Health, No. 4:12cv00016, 2012 U.S. Dist. LEXIS 161728, *5 (W.D. Va. Nov. 13, 2012). “[A]n unconsenting State is immune from suits brought in federal courts by her own citizens.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). Further, it is well settled that the states’ immunity also extends to “state agents and state instrumentalities,” including VDACS. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). It is well-settled that the Eleventh Amendment precludes lawsuits in federal court against states and state agencies. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (suit against state agency is barred by the Eleventh Amendment). Plaintiff’s claims against the defendants are barred by the Eleventh Amendment of the United States Constitution. VDACS is an agency of the Commonwealth of Virginia. Plaintiff’s Amended Complaint does not contain any allegations that identify the law VDACS allegedly violated nor do her pleadings demonstrate that Eleventh Amendment immunity was abrogated by Congress or waived by the states themselves. See In Re: Secretary of the Department of Crime Control and Public Safety v. Blackwood, 7 F.3d 1140, 1145 (4th Cir. 1993). The test for determining whether a State has waived its immunity from federal- court jurisdiction is a stringent one. A state statutory or constitutional provision will be found to constitute Eleventh Amendment immunity only when it specifies Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 9 of 20 PageID# 50 10 the State’s intention to subject itself to suit in federal court in the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction. Id. (quotation and citations omitted). To the extent the Amended Complaint includes a claim for slander/libel (defamation), VDACS is particularly entitled to Eleventh Amendment immunity. Watson would have to bring this claim under the Virginia Tort Claims Act (“VTCA”). “The Virginia Tort Claims Act, while generally waiving immunity for tort claims filed in state courts, does not waive the state’s eleventh amendment immunity.” McConnell v. Adams, 829 F.2d 1319, 1329 (4 th Cir. 1987); See Haley v. Commonwealth of Virginia Department of Health, No. 4:12cv0016, 2012 U.S. Dist. LEXIS 161728, *16 (W.D. Va. Nov. 13, 2012) (“[I]t is well settled that the VTCA does not waive Virginia’s Eleventh Amendment Immunity.”) Therefore, Watson’s claim for slander/libel against VDACS must be dismissed, with prejudice. 3. The Statute of Limitations has Run for Watson’s Slander/Libel Claim. Even if Watson’s claim for libel/slander was not barred by the Eleventh Amendment, the statute of limitations for a defamation claim is one year. Va. Code § 8.01-247.1. Watson appears to allege that a co-worker, Janita Royal, made false accusations that Watson made her feel “uncomfortable and threaten[ed] her.” (See Dkt. 3, Pg.ID# 25). Watson further alleges she filed a grievance and asked to be transferred to another department in a comparable position, and that VDACS granted her request and transferred her into the Office of Charitable and Regulatory Programs on January 13, 2014. At the latest, the statute of limitations expired in January 2015, and Watson’s claim for slander/libel must therefore be dismissed, with prejudice. 4. Watson Failed to Exhaust Her Administrative Remedies. To the extent Watson purports to allege “racial discrimination, retaliation, unequal/unfair Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 10 of 20 PageID# 51 11 pay, slander/libel and unfair/wrongful demotion” pursuant to Title VII, her claims must be dismissed because she failed to plead facts sufficient to show she exhausted her administrative remedies. Failure to exhaust administrative remedies precludes a federal court from exercising subject matter jurisdiction in the context of Title VII. Such an asserted failure should be analyzed pursuant to Rule 12(b)(1), which specifically addresses subject matter jurisdiction. See, e.g., Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003) ("Motions to dismiss for failure to exhaust administrative remedies are governed by Fed. R. Civ. P. 12(b) (1) for lack of subject matter jurisdiction."). Edwards v. Murphy-Brown, L.L.C., 760 F. Supp. 2d 607, 613 (E.D. Va. 2011). Watson alleges she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC Charge”) in February 2015 and received a Notice of Right to Sue dated September 28, 2016. (See Dkt. 3, Pg.ID# 29). Watson’s claims are limited by the scope of the prior EEOC Charge. Only the alleged acts of discrimination specified in the EEOC Charge (or investigated by the EEOC) may be challenged in a subsequent civil action under Title VII. See e.g., Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996); Lawson v. Burlington Industries, Inc., 683 F.2d 862, 863-64 (4th Cir. 1982) (summary judgment was properly granted with respect to alleged discriminatory acts not cited in the EEOC Charge). The Supreme Court has affirmed, “if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in Court.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 624 (2007); Doski v. M. Goldseker Co., 539 F.2d 1326, 1329 (4th Cir. 1976) (“It is settled that before an aggrieved person may file suit in the district court under Title VII he must first have timely filed a Charge of Discrimination with EEOC.”). As the Supreme Court has further stated: “A discriminatory act which is not made the basis for a timely Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 11 of 20 PageID# 52 12 charge is the legal equivalent of a discriminatory act which occurred before the statute was passed .... [I]t is merely an unfortunate event in history which has no present legal consequences.” United Airlines, Inc. v. Evans, 431 U.S. 553, 558 (1977). Limiting subsequent litigation to the scope of the prior EEOC Charge is based on the policy that “Title VII plaintiffs should not have unrestrained ability to litigate allegations of discrimination which are neither contained in the EEOC Charge nor investigated by the EEOC, thereby frustrating the statutory scheme of informal persuasion and voluntary compliance.” Hubbard, 436 F. Supp. 1184, 1189 (D. Md. 1977). Where the charge of discrimination addresses only certain acts of discrimination, the plaintiff cannot pursue a civil action claiming that she was discriminated against in different or additional respects. See e.g., Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (“The EEOC complaint did not address any question of discrimination in hiring, training, or promotion. Where, as here, the claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.”); Lawson v. Burlington Industries, Inc., 683 F.2d 862, 863-64 (4th Cir. 1982) (summary judgment was properly granted with respect to alleged discriminatory acts not cited in the EEOC Charge); Hicks v. Baltimore Gas & Elec. Co., 829 F. Supp. 791, 794-95 (D. Md. 1992), aff'd without op., 998 F.2d 1009 (4th Cir. 1993) (“Because Ms. Hicks failed to exhaust her administrative remedies with respect to her termination and retaliation claims, and because they constituted no part of the administrative investigations conducted by the EEOC, these claims are beyond the jurisdiction of this Court. Accordingly, the Court will dismiss these claims for lack of subject matter jurisdiction”). Simply put, Watson does not plead facts to show she exhausted her administrative Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 12 of 20 PageID# 53 13 remedies. In fact, Watson filed her EEOC Charge on March 4, 2015. 5 (See VDACS, Ex. 1). The EEOC Charge concerns allegations of discrimination that occurred in her full-time position as a Registration Analyst, commencing January 2014. Plaintiff failed to exhaust administrative remedies concerning any claims arising out of incidents that occurred prior to 2014. As such, the Court does not have subject matter jurisdiction over these claims and they should be dismissed, with prejudice. C. Plaintiff’s Amended Complaint Should Be Dismissed Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure Because Plaintiff Fails To State Any Plausible Claim Against the Defendant. Plaintiff’s Amended Complaint should be dismissed because the allegations do not allege facts to satisfy the plausibility standard required by Twombly/lqbal. Indeed, the Amended Complaint does not even allege VDACS violated any law or constitutional provision. 1. Watson’s Claim of Race Discrimination Fails Under the Plausibility Standard in Twombly/lqbal. The allegations contained in Watson’s Amended Complaint are fatally defective because they do not meet the plausibility standard required by Twombly/lqbal. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “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.” Id. To the extent this Court interprets the Amended Complaint to include a race discrimination claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the claim should be dismissed, with prejudice, pursuant to Rule 12(b)(6). 5 On a Motion to Dismiss, this Court may consider documents of unquestioned authenticity that are specifically referenced in the Complaint without converting this Motion to Dismiss into a Motion for Summary Judgment. See Gasner v. County of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995). Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 13 of 20 PageID# 54 14 Watson does not plead facts sufficient to show direct evidence of race discrimination. To make out a prima facie case of discrimination under Title VII, the plaintiff must show that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) an adverse employment action was taken against her; and (4) similarly situated employees outside the protected class received more favorable treatment. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). See also White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004). "Although Plaintiff is not required to plead a prima facie case of discrimination in order to survive a Rule 12(b)(6) motion, [she] nonetheless retains the burden of alleging facts sufficient to state all the elements of his claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). Watson fails to plead sufficient facts to state three elements of her race discrimination claim. Specifically, Watson does not plead facts to show that her job performance was satisfactory. To the contrary, she pleads facts demonstrating she was having performance issues. For instance, she alleges that she was told she was not meeting the “50 a week registration processed goal,” she received a “counseling memo” for submitting her timesheet “a few times” untimely, and she did not return voicemail messages timely. (See Dkt. 3, Pg.ID# 25-26). Nowhere in the Amended Complaint does she plead facts sufficient to show she was performing up to VDACS’ expectations. Therefore, Watson’s race discrimination claim is fatally defective and must be dismissed. Watson is also unable to establish an adverse employment action occurred. “An adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff’s employment.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (citation omitted); Thompson v. Potomac Elec. Power Co., 312 F.3d 645, Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 14 of 20 PageID# 55 15 650-51 (4th Cir. 2002); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997). The mere fact that a new job assignment is less appealing to the employee, however, does not constitute adverse employment action. Von Gunten, 243 F.3d at 868. Notably, Watson alleged she did not suffer any decrease in compensation, or change of job title. As a result, she must allege some other detriment to constitute an adverse employment action. Even if some of Watson’s tasks changed in her employee work profile, the allegations show she is still employed at VDACS in the same position, with the same job title, making the same salary. Since Watson is unable to plead facts to show she suffered an adverse employment action for purposes of Title VII, her race discrimination claim should be dismissed, with prejudice. Likewise, Watson’s race discrimination claim fails the causation prong. To meet the fourth prong of her prima facie case, Watson must show that similarly-situated applicants outside the protected class received more favorable treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Bd. of Tr. of Keene State Coll. v. Sweeney, 439 U.S. 24 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); United States Postal Serv. Bd. Of Governors v. Aikens, 460 U.S. 711 (1983); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502; (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). The fourth prong requires that Watson prove the purported “comparators” were similarly-situated to her, and that they were treated different than she was treated because of her race. Watson does not even plead facts identifying any other employees that are not African- American. Further, she fails to plead facts demonstrating these unnamed individuals were similarly situated to her position. In light of the foregoing, Watson cannot establish she was Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 15 of 20 PageID# 56 16 treated differently than any other similarly-situated non-black employee at VDACS. Therefore, her race discrimination claim must be dismissed. 2. Watson’s Retaliation Claim Also Fails Under the Plausibility Standard in Twombly/lqbal. Watson’s retaliation claim also fails as a matter of law. To establish a prima facie retaliation claim under Title VII, a plaintiff must show: (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) (citation omitted); Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc); Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008). Watson is unable to plead facts to show an adverse employment action. (See argument, supra). Watson is also unable to plead facts to establish the causal connection. “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action[,]” and not merely a “motivating factor.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528, 2534 (2013) (emphasis added). In this case, Watson's own allegations demonstrate that she cannot meet the stringent but-for analysis required by the Supreme Court because she cannot plead an adverse employment action. Watson admits she still works at VDACS and that although some of her job duties may have changed, her job title and salary remained the same. Even if Watson pled facts to demonstrate an adverse employment action, she still fails to plead sufficient facts to show the adverse employment action was because she engaged in a protected activity. Therefore, since Watson cannot establish an adverse employment action or a causal connection, the Court must dismiss her retaliation claim, with prejudice. Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 16 of 20 PageID# 57 17 3. Plaintiff’s Allegations Concerning Incidents That Occurred Prior to 2014 are Untimely and Should Be Dismissed. In addition, any incidents that occurred more than 300 days prior to the filing of the EEOC Charge are barred. "Failure to exhaust" claims are to be distinguished from the situation where a specific charge of discrimination is filed with the EEOC, but it is allegedly untimely because the event occurred more than 300 days before the date the charge was filed. As the Supreme Court held in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Therefore, unlike a "failure to exhaust" argument alleging the absence of a jurisdictional prerequisite, which should be addressed by a 12(b)(1) motion challenging subject matter jurisdiction, this Court finds that the "untimeliness" claims should be addressed within the context of a 12(b)(6) motion. See, e.g., West v. N.M. Taxation & Revenue Dep't., No. 09-0631, 757 F. Supp. 2d 1065, 2010 U.S. Dist. LEXIS 131626, at *48 (D.N.M. 2010). Edwards, 760 F. Supp. 2d at 613-614. Watson filed the EEOC Charge on March 4, 2015. Any allegations that occurred more than 300 days before that date, May 8, 2014, are barred and should not be considered by this Court. Watson alleges in the Amended Complaint that she was denied support in her position as a Certification Specialist. She also alleges facts concerning an incident involving Janita Royal and her belief that she was retaliated against. (See Dkt. 3, Pg.ID# 25). All of these alleged incidents occurred prior to May 8, 2014 and should therefore be dismissed and not considered by the Court. Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 17 of 20 PageID# 58 18 4. The Amended Complaint does not Allege Sufficient Factual Allegations to State a Claim for Slander/Libel (Defamation). To the extent Watson purports to plead a claim for defamation and it is not barred by the Eleventh Amendment or statute of limitations, she still fails to plead sufficient facts to state such a claim. The necessary elements for the tort of defamation in Virginia are: 1) publication about the plaintiff; 2) an actionable statement; and 3) the requisite intent. See Jordan v. Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005). None of these elements have been met. First, Watson does not plead the actionable statement in her Amended Complaint. To be an actionable statement the statement must be both false and harmful. Chadbourne v. Diggs, 2002 U.S. Dist. LEXIS 28157, at *11 (E.D. Va. Nov. 21, 2002). The Amended Complaint alleges that Royal, a co-worker, accused Watson of making her feel uncomfortable and that Watson threatened Royal. Watson does not plead the content of the statements or plead allegations that the statements were false and harmful. Watson also fails to plead facts to show publication or the requisite intent. As Watson fails to plead any of the elements necessary to establish a cause of action for defamation, this claim should be dismissed, with prejudice. V. CONCLUSION For the reasons stated above, Defendant respectfully requests that his Motion to Dismiss be granted, that Plaintiff’s Amended Complaint (and all of Plaintiff’s claims made therein) be dismissed, with prejudice, and that Defendant be awarded costs incurred herein, and grant such other relief as the Court deems just and appropriate. Respectfully Submitted, VIRGINIA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES By: ________s/__________________ Liza S. Simmons* Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 18 of 20 PageID# 59 19 Mark R. Herring Attorney General of Virginia Samuel P. Towell Deputy Attorney General Liza S. Simmons * Assistant Attorney General Bar I.D. No. 67550 Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 371-2265 (804) 371-2087 (fax) lsimmons@oag.state.va.us *Counsel of Record for Defendant ROSEBORO V. GARRISON WARNING Consistent with the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the following advise the pro se plaintiff, Sheniqua L. Watson, that: 1) You are entitled to file a response opposing this motion and any such response must be filed within twenty-one (21) days of the date on which the Motion to Dismiss was filed; 2) The Court could dismiss your action on the basis of the Defendant’s motion and brief in support if you do not file a response; 3) You must identify all facts stated by the Defendant with which you disagree and must set forth your version of the facts by offering affidavits (written statements signed before a notary public and under oath) or by filing sworn statements (bearing a certificate that it is signed under penalty of perjury); and 4) You are also entitled to file a legal brief in opposition to the brief in support filed by the Defendant. Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 19 of 20 PageID# 60 20 CERTIFICATE OF SERVICE I hereby certify that on March 2, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. I further certify that I have mailed by United Parcel Service the document to the following non-CM/ECF participant: Sheniqua L. Watson 4611 Demaree Court Henrico, VA 23231 Plaintiff Pro Se By: s/ Liza S. Simmons, VSB No.: 67550 Attorney for Defendant, Virginia Department of Agriculture and Consumer Services Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 Telephone: (804) 371-0817 Fax: (804) 786-0122 lsimmons@oag.state.va.us Case 3:16-cv-00985-MHL Document 7 Filed 03/02/17 Page 20 of 20 PageID# 61 VDACS, EX. 1 Case 3:16-cv-00985-MHL Document 7-1 Filed 03/02/17 Page 1 of 2 PageID# 62 Case 3:16-cv-00985-MHL Document 7-1 Filed 03/02/17 Page 2 of 2 PageID# 63