Brevard v. Racing Corp. of W. Va., CIVIL ACTION NO. 2:19-cv-00578
| Decision Date | 13 April 2020 |
| Docket Number | CIVIL ACTION NO. 2:19-cv-00578 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | ZACHARY BREVARD, Plaintiff, v. RACING CORPORATION OF WEST VIRGINIA, Defendant. |
Before the Court is a Partial Motion to Dismiss by Defendant Racing Corporation of West Virginia d/b/a Mardi Gras Casino Resort ("Mardi Gras"). (ECF No. 30.) For the reasons discussed more fully herein, the motion is GRANTED.
The following facts are drawn from the operative complaint and the documents attached thereto. See Tinsley v. OneWest Bank, FSB, 4 F. Supp. 3d 805, 819 (S.D. W. Va. 2014) () (citing Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). Additionally, the Court will consider the pertinent documents attached to Mardi Gras' motion and Plaintiff's response that are authentic and integral to the complaint. See id. (citing Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222-23 (4th Cir. 2009)).
Plaintiff Zachary Brevard ("Plaintiff") is an African American male, born in 1964, and a former employee of Mardi Gras. (ECF No. 9 at ¶ 7 (Am. Compl.).) Plaintiff was hired in September 2008 and was, subsequently, promoted to the Table Games Pit Boss in July 2010. (Id. at ¶¶ 16, 18.) Plaintiff alleges that, during the course of his employment with Mardi Gras, he suffered from racial harassment and discrimination by Mardi Gras' customers. (Id. at ¶¶ 21-22, 28, 33.) Specifically, he contends that customers "repetitively called" him racial slurs and demonstrated "physically threatening conduct" or "threatening behaviors" towards him. (Id. at ¶¶ 28, 33-34.) Plaintiff further alleges that Mardi Gras was aware of this harassment but did nothing to stop it. (Id. at ¶¶ 22, 27-28, 33.) He also claims that he was the "object" of "racially charged and biased, derogatory working conditions, and negative stereotype-based conduct" while he was employed with Mardi Gras. (Id. at ¶ 31.) In addition, he generally claims that he "was not afforded the same benefits" as other employees, "including access to a break room for managers." (Id. at ¶ 29.)
On May 26, 2017, Plaintiff was involved in a physical altercation with a customer after the customer used a racial slur and became aggressive towards Plaintiff. (Id. at ¶¶ 34-37). Due to the customer's "aggressive conduct," Plaintiff "attempted to diffuse the situation" and struck the customer in self-defense. (Id.) Following the incident, Plaintiff's employment was suspended on May 26, 2017, and terminated on June 2, 2017, for violating Mardi Gras' "workplace violence policy." (Id. at ¶¶ 16, 23.) Plaintiff claims that the termination of his employment based on the Mardi Gras' workplace policy was pretext for discrimination on the basis of his race, color, and age, and retaliation for his reporting of prior harassment by customers and complaining about the lack of proper employee evaluations. (Id. at ¶¶ 26, 28, 51, 57.)
Plaintiff filed a claim with the West Virginia Human Rights Commission ("WVHRC") on July 3, 2017, asserting that Mardi Gras discriminated against him because of his race. (Id. at ¶ 42; ECF No. 9-8 (WVHRC Complaint).) On August 31, 2018, after concluding its investigation, the WVHRC issued a "No Probable Cause Determination" along with a "Final Determination and Dismissal Order" and a "Notice of Right to Sue." (ECF Nos. 30-1, 30-2, 30-3.) On May 8, 2019, the United States Equal Employment Opportunity Commission ("EEOC") adopted the findings of the WVHRC and notified Plaintiff of his right to sue within 90-days of receiving the notice. (ECF No. 9 at ¶ 43; ECF No. 9-1 (EEOC Dismissal and Notice).)
Based on these facts, Plaintiff filed his initial complaint, pro se, on August 6, 2019, alleging that Mardi Gras discriminated against him because of his race. (ECF No. 2.) After retaining counsel, Plaintiff filed an amended complaint, asserting seven additional claims. (ECF No. 9.) The claims asserted in Plaintiff's Amended Complaint include the following: violations of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), for discrimination on the basis of Plaintiff's race and color (Counts I and II); violations of the Age Discrimination in Employment Act of 1967 ("ADEA") (Count III); violations of the West Virginia Human Rights Act ("WVHRA") (Count IV); retaliation under Title VII, the ADEA, and the WVHRA (Count V); common law claims for Intentional/Reckless Infliction of Emotional Distress (Count VI); Breach of Employment Agreement, Terms and Conditions (Count VII); and a violation under the West Virginia Wage Payment and Collection Act ("WVWPCA") based on the alleged breach of an employment agreement (Count VIII). On November 25, 2019, Mardi Gras filed the present partial motion to dismiss. (ECF No. 30.) Plaintiff timely responded to the motion on December9, 2019, (ECF No. 34), and Mardi Gras filed a timely reply on December 16, 2019, (ECF No. 35). As such, the motion is ripe for adjudication.
In general, a pleading must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (). To withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts "to state a claim to relief that is plausible on its face." Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "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." Iqbal, 556 U.S. at 678. Stated another way, the factual allegations in the complaint "must be sufficient 'to raise a right to relief above the speculative level.'" Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are required; labels, conclusions, and a "formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Ms. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) .
In evaluating the sufficiency of a complaint, the court first "identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal,556 U.S. at 679. The court then "assume[s] the[] veracity" of the complaint's "well-pleaded factual allegations" and "determine[s] whether they plausibly give rise to an entitlement to relief." Id. Review of the complaint is "a context-specific task that requires [the court] to draw on its judicial experience and common sense." Id. "[T]o satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged." Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal quotation marks omitted).
Mardi Gras moves to dismiss part of Plaintiff's claim under Counts I and II and all of Plaintiff's remaining claims under Counts III through VIII. The parties' arguments with respect to each count are addressed, in turn, below.
Plaintiff asserts claims for race and color discrimination under Title VII in Counts I and II, age discrimination under the ADEA in Count III, and retaliation under Title VII and the ADEA in Count V of the Amended Complaint. Before filing suit under Title VII and the ADEA, a party alleging discrimination must exhaust their administrative remedies. See Love v. Pullman Co., 404 U.S. 522 (1972); Melendez v. Sebelius, 611 F. App'x 762, 763 (4th Cir. 2015) (requiring exhaustion under Title VII); Nesbit-Harris v. Jackson, No. 3:07-696, 2008 WL 2329173, at *3 (E.D. Va. June 3, 2008) (). The purpose of the exhaustion requirement is to ensure "that the employer is put on notice of the alleged violations so that the matter can be resolved out of court if possible." Miles v. Dell, Inc.,429 F.3d 480, 491 (4th Cir. 2005) (citing EEOC v. Am. Nat'l Bank, 652 F.2d 1176, 1186 (4th Cir. 1981)). To meet this procedural requirement, the aggrieved individual must file a charge with the EEOC within 180 days of the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d). Alternatively, an individual may fulfill this obligation by filing a charge with a state or local agency that has a "worksharing" agreement with the EEOC. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 112 (1988) (). In such case, the charge must be filed within 300 days. See Haught v. Louis Berkman, LLC, 377 F. Supp. 2d 543, 552 (N.D. W. Va. 2005) (citing Mohasco Corp. v. Silver, 447 U.S. 807 (1980)).
In West Virginia, the WVHRC is a Fair Employment Practices Agency ("FEPA") under 29 C.F.R. § 1601.74 and has been operating under a worksharing agreement with the EEOC since 1983. See ...
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