Opinion
Civ. Action No. 3:01cv181.
August 23, 2001
Scott G. Crowley, for Plaintiff.
Robyn H. Hansen, and Gary A. Mills, for Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter was referred to this Court for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B) on Defendant's Motion to Dismiss Count II and III of the Complaint for failure to state a claim upon which relief may be granted or, in the alternative, a Motion for a More Definite Statement as to Count III. Fed.R.Civ.P. 12(b)(6), (e). Federal question jurisdiction is proper under 28 U.S.C. § 1331 and 1343(3), and the state law claims as alleged in Count III are properly within the Court's supplemental jurisdiction under 28 U.S.C. § 1367.
The Plaintiff filed this action seeking damages from his former employer for age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 (Count I), gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (Count II), and pendant claims of common law slander and defamation (Count III). Having considered the pleadings and oral arguments of counsel, it is recommended that the Motion to Dismiss Counts II and III be GRANTED and that the alternative Motion for a More Definite Statement be DENIED as moot.
Standard of Review
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is proper when, accepting as true all non-conclusory factual allegations in the complaint and drawing all reasonable inferences in favor of the non-moving party, the plaintiff does not state a claim upon which relief may be granted as a matter of law. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Undisputed Facts and Justifiable Inferences
The Court finds that the following facts and justifiable inferences are relevant to the resolution of the pending motion:
(1) The Plaintiff is a 47-year-old white male who was first hired as a Field Superintendent by the defendant company on November 1, 1999. He was promoted to Operations Manager on May 1, 2000, by the division president, Elizabeth Pruitt, and was transferred to the Company's central office in Williamsburg, Virginia, within the jurisdiction of the Court. (Compl. ¶ 4).
(2) Pruitt expressed concern to the Plaintiff of whether he would "fit in" at the central office.
(3) The females who worked in the division management regularly made and engaged in overt, sexually-charged comments and banter while males were admonished not to do so. (Compl. ¶ 5).
(4) Four male employees were fired by Pruitt over time for undisclosed reasons and another male resigned for health reasons. (Compl. ¶ 6).
(5) Plaintiff developed a personal, non-sexual relationship with an assistant estimator in the office (Alisha Staat). (Compl. ¶ 7). This relationship eventually came to the attention of the human resources manager (Nancy Short) who informed the Plaintiff that employee relationships had been tolerated in the past. In fact, Short stated that she had been encouraging another male employee to approach another employee (Debbie Babb), but Babb had rebuffed the entreaties. (Compl. ¶ 8). Plaintiff sent Babb an e-mail asking to call on her socially which was rejected by her. (Compl. ¶ 9).
(6) On August 2, 2000, Pruitt informed the Plaintiff that Babb and Staat had lodged sexual harassment complaints against him. Pruitt explained that she had no choice but to dismiss the Plaintiff because the Company could not afford allegations of this type. Pruitt did not comment whether she was accepting the complaints as true, nor did she seek any explanation from the Plaintiff, engage in any investigation, or provide the Plaintiff with any further details regarding the complaints. (Compl. ¶ 10, 19).
Analysis
Gender DiscriminationTo prevail in a gender discrimination claim, a plaintiff must establish a prima facie case of illegal discrimination by establishing that the employer acted with discriminatory intent either by direct evidence or by indirect evidence that permits an inference of illegal discrimination.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In this case, there is no direct evidence that the Plaintiff was fired because of his gender. Plaintiff alleges Pruitt expressed reservations about his "fitting in" at the division central office and that upon his arrival, he witnessed "overt, sexually-charged comments and banter" by female employees when such behavior by males was not tolerated. (Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss at 7). He also claims that the human resources manager encouraged him to pursue a female employee on a personal basis. Id. However, these allegations, accepted as true, are not evidence of discriminatory ammus leading to the Plaintiff's termination because there is no sufficient nexus linking the Plaintiff's gender, Pruitt's concern that the Plaintiff would adjust to or be accepted at the division central office, the so-called sexual banter, and even the Plaintiff's claim that Short encouraged him to pursue a social or personal relationship with Babb, to his subsequent termination. See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608-611 (4th Cir. 1999); Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995). In short, it is not a reasonable inference that any one of these three allegations, alone or in concert, caused the Plaintiff's termination. Brinkley v. Harbour Recreation Club, 180 F.3d at 608.
The Complaint does not specifically allege that Short encouraged Plaintiff to ask Babb "on a date", but rather that Short related to him what happened to another male employee whom she had encouraged to do so. There is some immaterial disparity between Plaintiff's allegation in the Complaint and what he now states he inferred from that conversation.
The comments upon which Plaintiff relies do not suggest the level or the degree that has been found to constitute direct evidence. Furthermore, even if there is some evidence of a pattern and practice to meet personnel cutback requirements by culling all the male employees, such evidence cannot alone, under the present law of this circuit, constitute direct evidence of discrimination for purposes of establishing a prima facie case. See Lowery v. Circuit City Stores, Inc. 158 F.3d 742, 759 (4th Cir. 1998), cert. granted and vacated by 527 U.S. 1031 (1999), remanded to 206 F.3d 431, cert. denied, ___ U.S. ___, 121 S.Ct. 66 (2000).
Because the Plaintiff has not presented direct evidence of discrimination, he therefore must show that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing at a level that met the employer's expectations at the time the adverse action took place; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. at 802. Once the prima facie case is established, then the burden of production shifts to the defendant to offer a non-discriminatory explanation for the action which may be rebutted by the plaintiff as merely pretextual, creating an inference of unlawful discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. at 507.
While not conceding the first prong of the McDonnell Douglas test, the Defendant assumes arguendo for purposes of this motion that the Plaintiff has met the burden of showing he is a member of a protected class within the context of his particular employment situation. See Castleberry v. Boeing Co., 880 F. Supp. 1435 (D.Kan 1995) (holding that white males could prove that their employer discriminated against the majority instead of proving they were members of a protected class). Although not stated in its brief, the Defendant also tacitly concedes the second prong of the test, that the Plaintiff suffered an adverse employment action since there is no question but that termination is an adverse employment action. Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Because the Defendant focuses on the fourth prong of the McDonnell Douglas test, the Court also assumes for purposes of this analysis that the third prong is satisfied as well — that the Plaintiff was performing at a standard that met his employer's reasonable expectations.
An adverse employment practice is defined in Title VII as "failing or refusing to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1).
The fourth prong can be satisfied by alleging that the Plaintiff was treated differently from his "comparators" because of his gender. Balazs v. Leibenthal, 32 F.3d 151, 155 (4th Cir. 1994). Although not every circuit requires analysis with respect to comparators because none may exist, this Court is obliged under the current law of the Fourth Circuit to determine if there were available comparators and, if so, whether they received substantially better treatment by the defendant employer under the same or similar circumstances. In this case, there are many potential comparators — but none who were accused of sexual harassment or similar misbehavior but were not dismissed. See Saunders v. Stone, 758 F. Supp. 1143 (E.D.Va. 1991) (holding that the court cannot infer discriminatory treatment where a plaintiff presents no evidence "by which the Court may compare plaintiff's treatment . . . to that of any other . . . employees'" with respect to the adverse employment action).
See, e.g., Haynes v. W.C. Caye Co., 52 F.3d 928 (11th Cir. 1995) (holding that where no comparators exist, they are unnecessary if the Plaintiff can otherwise establish a prima facie case). There is no supporting precedent in this circuit for this proposition. Furthermore, the Haynes case is clearly distinguishable for a number of reasons, including evidence in Haynes of direct gender discrimination.
Pursuant to current Fourth Circuit law, a Plaintiff must identify existing comparators who are similar in all relevant respects. Powell v. City of Norfolk, 1998 LEXIS 15915, at *10 (E.D. Va., Aug. 17, 1998), aff'd without op. 181 F.3d 90 (4th Cir. 1999) (unpublished) (relying on Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1994)). Although the Fourth Circuit has held that "[o]ther courts have required similarity in such factors as standards of performance, the supervisor to whom the employees report, the type of conduct in which the employees engaged, and an absence of mitigating circumstances to distinguish that conduct," it is still a plaintiff's burden to present allegations that his comparators were dismissed for conduct similar to his — not merely conclusory speculation that they would have been spared dismissal because of their gender. Id. at 11 (citing to other courts).
The facts in Powell v. City of Norfolk required the analysis to focus on very case specific details. Powell, an African-American, was a Norfolk police officer "moonlighting" as a stock clerk who shot and wounded a fleeing shoplifting suspect. Powell was convicted of unlawful wounding, a felony, and terminated from the police force. Later, Powell's conviction was set aside but he was not reinstated to the force. The court's analysis focused on whether Powell could show that other Caucasian officers were reinstated after being charged with similar misconduct, not whether other officers had the same education, duties, experience, and other like circumstances. See generally 1998 LEXIS 15915, at **2, 11.
The Plaintiff argues that he was dismissed for a mere unsubstantiated allegation of sexual harassment; that Pruitt "refused to properly and adequately investigate" the allegation; that Pruitt "refused to hear or consider [Plaintiff's] explanation"; and that Pruitt "knew or should have known [the claims] were false and maliciously made." (Compl. ¶ 19; Pl.'s Mem. in Opp'n at 10-11). However, the Plaintiff has cited no authority that demonstrates that the Defendant had a duty to conduct any investigation or that such actions against him were different from actions taken against or held in abeyance with respect to the female employees of the Company.
Although the Plaintiff has alleged that the Defendant's office was female-dominated and replete with sexually-charged banter which was not tolerated on the part of males, this cannot necessarily serve as the basis for alleging that women accused of sexual harassment would have been treated any differently by the employer. Because the Plaintiff asks the Court to assume that women would be treated differently, he is arguing that the Court accept them as "hypothetical comparators" since he cannot identify one female who was spared dismissal for the same or similar allegations. Houck v. Virginia Polytechnic Inst., 10 F.3d 204 (4th Cir. 1993). The Court cannot recommend such a finding. Because the Plaintiff cannot set forth a claim which satisfies the fourth prong, that he was terminated because of his gender, he cannot sustain a claim of gender discrimination under Title VII as a matter of law. Balazs v. Liebenthal, 32 F.3d at 155. Common Law Slander and Defamation
Compare to cases brought under the Equal Pay Act, Houck v. Virginia Polytechnic Inst., 10 F.3d at 204 (holding that a female plaintiff must identify actual male comparators, not hypothetical comparators, to sustain a prima facie case under the Equal Pay Act); Tornow v. Univ. of North Carolina at Chapel Hill, 1997 WL 237282, at * 3 (4th Cir. Sept. 25, 1992)(unpublished) (where there were actual male comparators, the University applied its "pay plan" in a gender-neutral manner even though a department practice of requiring female, but not male, employees to clean the kitchen was suspect employment action, it did not impact salary decisions); or under 42 U.S.C. § 1981, Edwards v. Newport News Shipbuilding Dry Dock Co., 1998 WL 841567, at *2 (4th Cir. Dec. 7, 1998) (citing Stephens v. South Atl. Canners, Inc., 848 F.2d 484, 489 (4th Cir. 1988), with respect to wrongful discharge, the prima facie elements in § 1981 cases are the same as in Title VII cases where a plaintiff must show a comparator of the unprotected class engaged in the same conduct and was not discharged).
Under Virginia law, there is no distinction between libel (written defamation) and slander (oral defamation). Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981).
To sustain a claim for common law defamation in Virginia, a plaintiff must demonstrate that a defamatory statement about him was made and published to a third party. LeMond v. Viamac, Inc., 2001 WL 660678, at *2 (Va.Cir.Ct. June 4, 2001) (holding where a plaintiff has alleged the statements that were made, by whom, to whom, and when, he has sufficiently pled the facts informing the defendant of the nature and character of the claim). In this case, the Plaintiff complains that Pruitt defamed him (1) by stating to the Plaintiff that he was being dismissed because Staat and Babb lodged sexual harassment complaints against him; and (2) because Pruitt repeated the reason for his termination to unidentified third parties. (Compl. ¶¶ 19, 21; Pl.'s Mem. in Opp'n at 11).
An accusation of sexual harassment may constitute defamation because it may "`make the plaintiff appear odious, infamous, or ridiculous,'" however "[m]erely offensive or unpleasant statements are not defamatory."Fuller v. Edwards, 180 Va. 191, 22 S.E.2d 26 (1942). For the purposes of the motion to dismiss, the Court assumes arguendo that the allegation of sexual harassment constitutes a defamatory statement. However, Pruitt's statement does not allege that Plaintiff is guilty of sexual harassment, it only states a fact — that two employees had made such allegations. Pruitt imputed no veracity to the allegations, but simply communicated to the Plaintiff that the Company could not afford to have even an accusation of sexual harassment made against an employee. As such, the statement is not defamatory.
Furthermore, any defamatory statement must also be published to a third party. Chalkley v. Atlantic Coast Line R.R. Co., 150 Va. 301, 334-335, 143 S.E.2d 631, 640-641 (1928). A plaintiff cannot therefore be defamed if he is the one to whom the statement is published and therefore Pruitt's comments to the Plaintiff explaining the reason for his dismissal cannot constitute common law defamation in Virginia. Id.
Moreover, to the extent that the Plaintiff alleges that Pruitt published the statement to any third party, he must allege that the defamatory remarks were heard by others who understood that such statements were about him. Food Lion, Inc. v. Melton, 250 Va. 144, 151, 458 S.E.2d 580, 585 (1995). Whether a third party was involved in the termination decision for which a qualified privilege may also apply, the present record does not reveal and Plaintiff's counsel confirmed at oral argument that the Plaintiff cannot identify any third parties who heard the defamatory statements from Pruitt and understood they involved the Plaintiff. Id. It is therefore apparent that the Plaintiff cannot sufficiently allege publication of a defamatory statement about him by Pruitt to any third party and thus his claim for defamation and slander must fail for that additional reason as well.
Defendant argues in the alternative that if Pruitt did publish the statement, such a statement was nevertheless privileged as inter-office communication about an employee's discharge. Southeastern Tidewater Opportunity Project, Inc. v. Bade, 246 Va. 273, 276, 435 S.E.2d 131, 132 (1993). The Plaintiff argues that Pruitt lost any such privilege because she repeated the allegation while knowing it to be false and therefore it was maliciously made. Williams v. Garraghty, 249 Va. 224, 236 455 S.E.2d 209, 217, cert. denied, 516 U.S. 814 (1995). Because the Plaintiff fails to state a claim for defamation upon which relief may be granted, it is unnecessary to answer this question in any event.
Conclusion
For the foregoing reasons, it is recommended that the Defendant's Motion to Dismiss Counts II and III of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted be GRANTED and that the alternative request as to Count III for a more definite statement be DENIED as moot.
Let the Clerk of the Court send a copy of this report and recommendation to the Hon. Robert E. Payne and to all counsel of record.
It is so ORDERED.