Opinion
No. 5:17-CV-00547
08-23-2018
Roy Herr, Plaintiff, v. The American Kennel Club, Defendant.
Memorandum & Recommendation
Plaintiff Roy Herr claims that his former employer, Defendant American Kennel Club, discriminated against him based on his age, sex, sexual orientation, and the fact that he attempted to take leave under the Family Medical Leave Act. AKC, for its part, claims that many of Herr's claims should be dismissed due to his failure to exhaust his administrative remedies with the EEOC and his Amended Complaint does not state a claim for relief. After reviewing the Amended Complaint and the applicable law, it is appropriate for the district court to dismiss all of Herr's claims except for his claim that AKC discriminated against him on the basis of his sex.
I. Background
Herr, a heterosexual male, began working for AKC in late 2005. Am. Compl. ¶ 7. During his about eleven and a half year career with the organization, Herr worked in different positions, rising to the role of Executive Field Representative. Am. Compl. ¶ 7.
Herr worked with Patricia Proctor, who eventually became his supervisor. Am. Compl. ¶¶ 11, 16. Herr and Proctor had a tumultuous relationship. He described her as "confrontational" and "combative" towards him. Am. Compl. ¶ 11. Herr also claims that she made false accusations against him and invented issues with his performance at work. Am. Compl. ¶¶ 11, 12.
The Amended Complaint lists several ways that Proctor allegedly treated Herr badly:
• When Herr moved back to Arizona from North Carolina in April 2012, Proctor refused to reimburse him for certain meal expenses despite AKC's President having told Herr before that all of his moving expenses would be reimbursed. Am. Compl. ¶¶ 9, 13, 14, 19.
• Proctor refused to approve a raise for Herr that he had previously been promised. Am. Compl. ¶¶ 17.
• To avoid renting a car, Herr accepted a ride from another person. Proctor later chastised Herr for violating company policy although the policy prohibits only giving people rides, not accepting rides from other individuals. Am. Compl. ¶ 21.
• Before attending a dog show in Cleveland, Ohio, Herr tried to save AKC money by staying at a home in Pennsylvania instead of at a hotel. After the show, he stayed at a hotel in Pittsburgh and then flew home. Proctor denied his expense reimbursement request because, she claimed, company policy required him to return home the same day as the show. But AKC does not have such a policy. Am. Compl. ¶ 24.
• Proctor accused Herr of malfeasance when he booked a hotel room through a local kennel club even though Herr was following a long-approved practice in an attempt to ensure that AKC could benefit from a block rate for hotel rooms. Am. Compl. ¶ 26.
• Herr had to stay in locations with poor internet access. Proctor subsequently insisted that Herr cancel all of his hotel reservations and only stay at chain hotels that provided internet connections. She also falsely accused him of charging for internet access. Am. Compl. ¶¶ 27, 33(a), 33(b).
• Proctor insisted that Herr drive to an event even though a computer system suggested that flying was the preferred method of travel. Am. Compl. ¶ 33(c).
• Although company policy entitled the senior field representative to leave work first, Proctor required Herr to change his plane ticket so that he could work later than another representative. Am. Compl. ¶ 33(d).
• Proctor used these made up instances of violations of company policy as a basis to give Herr a poor performance evaluation. Prior to Proctor becoming his supervisor, Herr's evaluations were all satisfactory or better. Am. Compl. ¶¶ 28, 29, 30.
To hear Herr tell it, Proctor's animus towards him stemmed from her preference to work with women and homosexual men instead of heterosexual men. Am. Compl. ¶¶ 18, 25. Proctor was apparently open about her preference and "routinely admitted she would rather work with women and gay men." Am. Compl. ¶ 18. In fact, on one occasion, Proctor told Herr that she "would rather have all gay men and women as field reps[.]" Am. Compl. ¶ 25. She did not subject women and homosexual men to the same kind of scrutiny or make the same kinds of false allegations against them. Am. Compl. ¶¶ 12, 18, 22, 27. Herr has repeatedly complained to AKC officials about Proctor's conduct. Am. Compl. ¶ 34, 38.
Herr sought and received approval to take time off intermittently under the Family Medical Leave Act in late August 2016. Am. Compl. ¶¶ 35, 36. He claimed that he needed this time off because he was having medical issues as a result of the stress caused by Proctor's actions. Am. Compl. ¶ 35.
In February 2017, while in Raleigh, North Carolina for the AKC Annual Meeting, Herr notified AKC officials that he would need to take intermittent FMLA leave in April 2017. Am. Compl. ¶ 39. Shortly thereafter, AKC officials told Herr that they wanted to meet to discuss the annual performance review that Proctor submitted. Am. Compl. ¶ 40.
At the meeting, Herr told the AKC officials that the review contained "a lot of information that was untrue, incorrect[,] and fabricated." Am. Compl. ¶ 40. AKC fired him at the end of the meeting. Am. Compl. ¶¶ 40. Herr, who is 66, claims AKC replaced him with "a younger homosexual male[.]" Am. Compl. ¶¶ 7, 41.
Several months later, Herr filed a Charge of Discrimination against AKC with the EEOC. Am. Compl. ¶ 48. The Charge of Discrimination alleged that AKC discriminated against him based on his age and sex. Mem. in Supp. of Resp. to Dismiss at 22, D.E. 33. Herr explained that AKC fired him in February 2017 because he "did not get along with Patricia Proctor[.]" Id. He went on to explain that "non-gay men ... were discriminated against because Patricia preferred females or gay men." Id. And he notes that "[s]hortly after [his] discharge, [he] was replaced with a younger gay male." Id.
Although the Charge of Discrimination and the Notice of Right to Sue were not included with the Amended Complaint, they are referred to in that document and Herr's counsel does not challenge the authenticity of the documents AKC submitted. Thus, it is appropriate for the court to consider these documents in addressing both AKC's motion to dismiss under Rule 12(b)(1), Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009), and Rule 12(b)(6), Phillips v. LCI Intern., Inc., 190 F.3d 609, 618 (4th Cir. 1999).
The EEOC issued Herr a Right to Sue Letter in late July 2018 and this lawsuit followed several months later. The Amended Complaint alleges that AKC violated the Age Discrimination Act of 1967, engaged in gender or sex discrimination in violation of Title VII, violated the FMLA, and retaliated against him for exercising his FMLA rights. AKC asks the court to dismiss the Amended Complaint because the court lacks subject matter jurisdiction over some claims because of Herr's failure to exhaust his administrative remedies and that the Amended Complaint fails to state a claim about the remaining claims.
II. Discussion
A. Failure to Exhaust Administrative Remedies
AKC maintains that because Herr's EEOC Charge of Discrimination discussed discrimination only in the context of his termination, the court lacks subject matter jurisdiction over the remainder of his ADEA and Title VII claims. Herr responds that because his Charge of Discrimination showed that AKC discriminated against him because of his age and sex "all claims of sex discrimination and age discrimination are within the scope of the Charge of Discrimination." Mem. in Supp. of Resp. to Dismiss at 8. He also asserts that the claims in the Amended Complaint are reasonably related to the contents of his EEOC filing because the Charge alleges that "he was terminated as a result of his adverse relationship with his supervisor, who preferred working with women and gay men and that he was replaced by a younger gay man[.]" Id. After reviewing the parties' arguments and the applicable law, the court finds that AKC has the better argument and recommends that the district court grant its motion on this issue.
Congress has required that before an individual litigant may bring a civil action under Title VII, they must exhaust their administrative remedies with the EEOC. See 42 U.S.C. 2000e-5(b), (f)(1). The administrative remedy process begins with the aggrieved individual filing a charge of discrimination with the EEOC within a statutorily prescribed period. 42 U.S.C. § 2000e-5(e)(1). The charge must be "sufficiently precise to identify the parties, and to describe generally the action or practice complained of." 29 C.F.R. § 1601.12(b).
The factual content of the charge is important because it sets the boundaries for any subsequent litigation begun after the administrative process. See Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996). The Fourth Circuit has explained that "[i]f '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.'" Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) (quoting Dennis v. Cty of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995)).
Although the Fourth Circuit has recognized that charges of discrimination should receive a liberal construction because they are not typically filed by lawyers, it has still held fast to the principle that "the factual allegations made in formal litigation must correspond to those set forth in the administrative charge." Id. Thus, a "plaintiff's claim generally will be barred if his charge alleges discrimination on one basis-such as race-and he introduces another basis in formal litigation-such as sex." Id. And "[a] claim will also typically be barred if the administrative charge alleges one type of discrimination-such as discriminatory failure to promote-and the claim encompasses another type-such as discrimination in pay and benefits." Id. If the factual allegations in the charge and the complaint differ, the allegations in the charge must be "reasonably related" to the allegations in the complaint or the allegations in the complaint would have been developed by a reasonable investigation of his complaint for a court to have jurisdiction over the claims. Id.
Herr's charge of discrimination focuses on his termination from AKC because of his age and sex. This is problematic for him because his Amended Complaint alleges age and sex discrimination in a host of different ways that go beyond his termination. Unless the court finds that these additional claims are reasonably related to his termination claim or a reasonable investigation of his charge would have uncovered them, they must be dismissed for a lack of subject matter jurisdiction.
When assessing this question, the Fourth Circuit has "found exhaustion where both the administrative complaint and formal litigation concerned 'discriminat[ion] in promotions' but involved different aspects of the 'promotional system,' and where both the EEOC charge and the complaint included claims of retaliation by the same actor, but involved different retaliatory conduct." Sydnor v. Fairfax Cty, 681 F.3d 591, 594 (4th Cir. 2012) (citations omitted). But it has determined that the plaintiff failed to exhaust when "the plaintiff's EEOC charge and formal suit 'dealt with different time frames, actors, and conduct' such that they 'describe[d] two different cases.'" Id. at 595 (quoting Chacko, 429 F.3d at 511-12).
The conduct in the Amended Complaint differs in nature from the content of the administrative charge so much so that the court cannot find that Herr has exhausted his administrative remedies for claims beyond those stemming from his termination. To begin with, the administrative charge focuses on only one event: Herr's termination. But the Amended Complaint seeks to recover for a variety of allegedly discriminatory conduct including his demotion; a decrease in pay, benefits, and bonuses; fabricating performance issues; giving unwarranted negative performance evaluations; other unspecified adverse employment actions; and creation of a hostile work environment. Am. Compl. ¶¶ 55, 57, 69, 70. These are not the types of closely connected issues that the Fourth Circuit has found to be reasonably related or that a reasonable investigation would uncover. See Sydnor, 681 F.3d at 594.
And the actors involved in the allegedly discriminatory conduct in the two documents are also different. Herr's Amended Complaint explains that he was terminated by representatives of AKC's Human Resources Department, but Proctor was the antagonist for all the remaining allegedly wrongful conduct. The difference in the individuals who allegedly committed the discriminatory acts also prevents the court from finding that the allegations in the administrative charge and the Amended Complaint were reasonably related or that the extra claims would be uncovered during a reasonable investigation of his administrative charge.
Herr claims that two statements in his administrative charge are enough to show that he exhausted his administrative remedies. First, he relies on the statement that he was "aware that non-gay men ... were discriminated against because [Proctor] preferred females or gay men." Second, Herr relies on the generalized language at the end of the administrative charge where Herr states his belief that AKC discriminated against him based on his sex and age. But there is no hint in either statement that Herr was complaining of conduct that went beyond his termination.
And allowing these types of generalized statements to satisfy the exhaustion requirement would contravene the requirement that administrative claims be "sufficiently precise to identify the parties, and to describe generally the action or practice complained of." 29 C.F.R. § 1601.12(b). To adopt Herr's argument would allow a party to bring claims in court about any type of discriminatory conduct just by making a generalized assertion in an administrative complaint that their employer discriminated against them. This type of vague assertion is not what is envisioned by the language enacted by Congress, the regulations promulgated by the Department of Labor, or decisions from the federal courts. Thus, the district court should grant AKC's motion to dismiss on this issue without prejudice for Herr's failure to exhaust his administrative remedies for his claims in Counts I and II beyond the allegations of discriminatory termination.
B. Failure to State a Claim
AKC also argues that the court should dismiss the Amended Complaint because it fails to state a claim upon which relief may be granted. The Supreme Court has explained that to withstand a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court explained that "[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. Thus, while a court must accept all the factual allegations in a complaint as true, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or only a formulaic recitation of the elements of a claim. Id. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint "plausibly suggest[s] an entitlement to relief." Id. If, after conducting this two-part analysis, "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not 'shown' — 'that the pleader is entitled to relief.'" Id. If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
1. ADEA Claim
Herr first claims that AKC terminated him based on his age in violation of the Age Discrimination in Employment Act. The ADEA provides that an employer may not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's' age." 29 U.S.C. § 623(a)(1). The Act's protections apply to people who are 40 or older. Id. § 631(a)(1). An ADEA plaintiff must establish that "age was the 'but-for' cause of the employer's adverse action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
There are no allegations in the Amended Complaint that establish a plausible case that Herr's age was the but-for cause of his termination. The entire focus of the Amended Complaint is that AKC discriminated against him because of his sex and sexual orientation. There is no indication that age played any role in AKC's decision, let alone that it was the but-for cause of his termination. Thus, the district court should dismiss this claim.
2. Title VII Claim
The Amended Complaint's second claim alleges that AKC terminated Herr because he was a heterosexual male in violation of Title VII. AKC raises two arguments in its motion. First, it argues that the claim should be dismissed because Herr cannot establish a prima facie case of gender discrimination because he cannot show that AKC hired a woman to replace him. Second, it argues that the Fourth Circuit does not recognize sexual orientation discrimination as a basis for a Title VII claim. Although the second argument has merit, the first argument ignores Fourth Circuit precedent about the standard for motions to dismiss in the Title VII realm. Thus, the district court should dismiss any claims based on sexual orientation, but allow claims based on sex discrimination to proceed.
Herr's Amended Complaint repeatedly claims that his sexual orientation—or, rather, his supervisor's preference to work with individuals of a different sexual orientation—was a basis for his termination. Even if this allegation is true, the Fourth Circuit has explained that this is not a basis for a claim under Title VII. Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143-44 (4th Cir. 1996). Confronted with this precedent, Herr argues that his claim is not based on termination because of sexual orientation, but is based on termination for exhibiting what Herr claims is a stereotype associated with men: a desire to have "romantic and sexual relationships with women." Mem. in Supp. of Resp. to Mot. to Dismiss at 15.
The court rejects this attempted end run around Fourth Circuit precedent. The Amended Complaint does not contain the word stereotype or any other language that would give notice of a stereotype-based claim. Herr alleges that AKC discriminated against him because of his sexual orientation and thus under current Fourth Circuit law, this aspect of his Title VII claim must be dismissed.
AKC also claims that the sex-based Title VII claim should be dismissed because Herr's complaint alleges that he was replaced by a man and thus he cannot establish a prima facie case of employment discrimination under the familiar McDonell Douglas burden shifting test. AKC's accurately identifies a flaw in Herr's Amended Complaint, but under binding Fourth Circuit precedent this argument alone is insufficient to have a case dismissed at the pleadings stage.
Generally, to establish a prima facie case of sex discrimination, a plaintiff must show that "(1) she is a member of a protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class." Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). And the Amended Complaint unambiguously alleges that Herr's replacement was a male, just like him. Thus, it appears unlikely that Herr can establish a prima facie case of sex-based discrimination.
But in McCleary-Evans v. Maryland Department of Transportation, 780 F.3d 582 (4th Cir. 2015), the Fourth Circuit held that the Supreme Court's instruction in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), that "an employment discrimination plaintiff need not plead a prima facie case of discrimination ... to survive [a] motion to dismiss" is still binding precedent after the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 662 (2007), and Iqbal. So instead of alleging a prima facie case of discrimination, a plaintiff in a Title VII action need only "allege facts to satisfy the elements of a cause of action created by that statute" to survive a motion to dismiss. McCleary-Evans, 780 F.3d at 585.
In order to state a statutory claim under Title VII, Herr only needs to allege that AKC terminated him or otherwise discriminated against him "because of [his] race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a)(1). But AKC's entire argument against the sufficiency of the sex-based discrimination claim focuses on Herr's failure to establish a prima facie case because he did not allege that it replaced him with a person of a different sex. It does not argue that he cannot establish a statutory claim and the statute does not require that Herr allege he was replaced by a person outside of his protected class. Thus, the district court should deny AKC's motion to dismiss Herr's sex-based discrimination claim.
3. FMLA-based Claims
Herr's final two claims allege that AKC discriminated and retaliated against him for taking time away from work under the Family Medical Leave Act. In short, the FMLA entitles qualified employees to take up to twelve weeks of leave for, among other things, "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The Fourth Circuit has explained that FMLA also "protect[s] employees from discrimination or retaliation for exercising their substantive rights under" the Act. Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541, 546 (4th Cir. 2006). Accord 29 C.F.R. § 825.220(c).
AKC claims that the court should dismiss the FMLA claims because Herr's Amended Complaint does not establish that his choice to request and take FMLA leave was the cause of his termination. Def's Memo. at 18-19. In response, Herr points the court to a paragraph of his Amended Complaint, which states, "Defendant violated the FMLA by harassing, discriminating against, and/or retaliating against the Plaintiff in significant part because he exercised rights under the FMLA, by terminating Plaintiff." Pl's Resp. at 17 (citing Am. Compl. ¶ 80). But the paragraph that Herr relies on is conclusory and thus he cannot rely on it to establish a plausible claim for relief under the FMLA. Iqbal, 556 U.S. at 678. Because this is the sole basis identified for Herr's claim that his request to take time off under FMLA was the reason for his termination, he has failed to state a claim for relief under the FMLA. The undersigned thus recommends that the district court dismiss Counts III and IV.
AKC maintains that the McDonnell Douglas burden shifting test governs the FMLA retaliation and discrimination claims and that Herr has failed to establish a prima facie case because he has not alleged that his request for FMLA leave was the proximate cause of his termination. It is unclear whether the reasoning of Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and McCleary-Evans v. Maryland Department of Transportation, 780 F.3d 582 (4th Cir. 2015) (rejecting the need to establish a prima facie claim McDonnell Douglas to state a claim under Title VII) applies to FMLA actions. But see West v. J.O. Stevenson, Inc., 164 F. Supp. 3d 751 (E.D.N.C. 2016). But even if the reasoning of those cases applies to FMLA claims, the applicable regulation states that it is against the law to discriminate or retaliate against an employee "for having exercised or attempted to exercise FMLA rights." 29 C.F.R. § 825.220(c). Thus, it is appropriate to consider whether Herr's decision to take FMLA leave was the but for cause of the alleged discrimination or retaliation in determining whether he has stated a claim for relief.
III. Conclusion
As discussed above, the undersigned recommends that the district court deny AKC's Motion to Dismiss on the sex-based discriminatory termination claim and grant the motion to dismiss for all remaining claims.
The court also directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: August 23, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge