Burke v. At & T Technical Services Co., Inc.

• Citation: 55 F.Supp.2d 432
• Decision Date: 14 July 1999
• Docket Number: No. C.A. 99-114-A.,C.A. 99-114-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Lydia Baker BURKE, Plaintiff, v. AT & T TECHNICAL SERVICES CO., INC., and Lucent Technologies Technical Services Company, Inc., Defendants.

55 F.Supp.2d 432

Lydia Baker BURKE, Plaintiff, v. AT & T TECHNICAL SERVICES CO., INC., and Lucent Technologies Technical Services Company, Inc., Defendants.

No. C.A. 99-114-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 14, 1999.

COPYRIGHT MATERIAL OMITTED

William F. Burton, Stein, Mitchell & Mezines, Washington, D.C., David C. Simmons, Carter & Coleman, Alexandria, VA, for plaintiff.

Stephen Robinson, Ronda L. Brown, McGuire Woods Battle & Boothe, LLP, McLean, VA, for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

This race discrimination case comes before the Court on defendant's threshold motion to dismiss the complaint. At issue, specifically, are the following questions:

(i) Must a terminated employee's retaliation claim be administratively exhausted before it can be advanced in court?

(ii) Under what circumstances can the continuing violation doctrine rescue otherwise untimely claims of discriminatory demotion and failure to promote?

(iii) Is employment discrimination on the basis of race as alleged here sufficient to establish a claim for intentional infliction of emotional distress under Virginia law?

I.¹

Ms. Burke, an African-American woman, was an employee of AT & T Technical Services Company, today known as Lucent Technologies Technical Services Company, from October 1992 to November 1997. In 1992, she was hired as the Customer Service Center Manager for AT & T Technical Services at the CIA facility in Langley, Virginia. As Customer Service Manager, Ms. Burke supervised eight Customer Service Representatives and trained project managers, technicians, and customers. Ms. Burke remained in this position, which at some point during her tenure was restyled "Manager of the Assignment Bureau," until 1995. In September 1995, Ms. Burke was demoted to Customer Service Representative and Scott Rice, a white male alleged to be less qualified than Ms. Burke, was placed in the position of Manager of the Assignment Bureau. At the time she was demoted, Ms. Burke had also been acting as Supervisor of the Assignment Bureau. Immediately after her demotion, she asked Mr. Rice whether she might apply for the position of Supervisor of the Assignment Bureau. He told her this position would not be filled, yet the next day the announcement was made that Mr. Rice had appointed Dolores McBride, a white female, to serve as Supervisor. According to the complaint, when Ms. Burke was demoted in 1995, Mr. Rice and other AT & T employees told her that her reassignment was only temporary, when in fact, the demotion and transfer were permanent.

In or around October 1996, Ms. Burke was again demoted and reassigned to a customer support position in which her duties were limited to answering the telephone, responding to customers' questions, and distributing answering machines. She alleges that on this occasion she was demoted by Nick Vuxson, who is white and who similarly demoted and reassigned three of the other four African-American employees under his supervision.

In February 1997, Ms. Burke reapplied for the position of Manager of the Assignment Bureau, which became available when Mr. Rice left the position. The position was filled by a white female, alleged to be less qualified than Ms. Burke. In October 1997, AT & T offered Ms. Burke a position as Project Manager. She reluctantly accepted the offer, though she felt she was overqualified for the position. In early November 1997, AT & T employee Kathy Kunkle, who is white, informed Ms. Burke that the Project Manager position she had accepted had been withdrawn. She then advised Ms. Burke that because the company had no positions open for which she was qualified, she would be discharged. She further advised Ms. Burke that she would notify her if any position for which she was qualified became available in the following year. In April 1998, Ms. Burke learned that her former position as a Customer Service Manager in the Assignment Bureau had become available and had been filled, though she had not been advised of this opening. Ms. Burke also learned that other positions for which she was qualified had become available since November 1997. Yet, AT & T did not notify her of any of these openings.

Ms. Burke alleges that these various adverse employment actions were the result of her race, not her performance. In this regard, she alleges that from 1994 to 1997, she received annual performance appraisal ratings of "outstanding" in her job. She also alleges that after she filed her Charge of Discrimination with the Fairfax County Human Rights Commission on May 29, 1997,² her employer retaliated against her by (i) refusing to restore her to her former managerial position, (ii) revoking the previously offered and accepted Project Manager position, (iii) terminating her employment in November 1997, and (iv) failing to advise her of any suitable positions that became available for which she might apply after her termination. Thus, she brings a race discrimination claim and a retaliation claim under Title VII of the Civil Rights Act of 1964³ and a Virginia common law claim of intentional infliction of emotional distress. AT & T moves to dismiss the retaliation and intentional infliction of emotional distress claims in full and the race discrimination claim in part.

II.

The applicable standard in resolving a threshold dismissal motion is well established. Dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is only appropriate where, construing the allegations in the light most favorable to the plaintiff and assuming the facts alleged to be true, it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989). Yet, where a plaintiff colorably states facts which, if proven, would entitle her to relief, a motion to dismiss should not be granted. Adams v. Bain, 697 F.2d 1213, 1216 (4th Cir.1982). Similarly, in a motion to dismiss pursuant to Rule 12(b)(1), Fed.R.Civ.P., on the basis that the complaint, on its face, fails to state a basis for subject matter jurisdiction, the court "assumes all facts in the complaint are true, thus providing the plaintiff with the same procedural protections as a Rule 12(b)(6) determination." Lane v. David P. Jacobson & Co., 880 F.Supp. 1091, 1094 (E.D.Va.1995); see also Dickey v. Greene, 729 F.2d 957, 958 (4th Cir.1984); Adams, 697 F.2d at 1219.

III.

AT & T moves to dismiss Ms. Burke's retaliation claim (Count II of the complaint) pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because Ms. Burke failed to file a timely, verified charge of retaliation within 300 days of the alleged act as required by Title VII. See 42 U.S.C. § 2000e-5. Ms. Burke did not formally file a charge of retaliation with the EEOC, although after her termination both she and her counsel sent unverified letters to the EEOC requesting that her discrimination charge be amended to include a claim of retaliation. AT & T argues that since the letters were not sworn and the EEOC did not have the statutorily mandated 180 days to investigate the retaliation claim raised in the letters before the issuance of the right to sue letters, that this notice was not sufficient to comply with the statute. Ms. Burke responds that under Nealon v. Stone, 958 F.2d 584 (4th Cir.1992), a separate administrative charge is not a prerequisite to bringing a retaliation suit under Title VII. AT & T in turn responds that Nealon is not applicable here.

In Nealon, the Fourth Circuit held that a plaintiff may raise a retaliation claim for the first time in federal court, finding this rule to be "the inevitable corollary of [the] generally accepted principle that the scope of a Title VII suit may extend to `any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.'" Id. at 590 (quoting Hill v. Western Elec. Co., 672 F.2d 381, 390 n. 6 (4th Cir.1982)). The Fourth Circuit also noted that the Seventh Circuit, in considering this question, had recognized that various practical concerns counseled against requiring a plaintiff to file a retaliation claim with the EEOC, including, in the Seventh Circuit's words, that "having once been retaliated against for filing an administrative charge, the plaintiff will naturally be gun shy about inviting further retaliation by filing a second charge complaining about the first retaliation." Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir.1989) (quoted in Nealon, 958 F.2d at 590).

AT & T, seizing upon this language, argues that Nealon stands for the proposition that in some, but not all, circumstances a retaliation claim may be raised for the first time in court and that this case falls outside of the exception to administrative review carved out in Nealon. Specifically, AT & T argues that since Ms. Burke was no longer employed by AT & T when she sought to file the retaliation charge, she could not be "gun shy" about inviting further retaliation and thus Nealon does not apply to her.

AT & T's contention fails both factually and legally. First, on the facts, while the retaliation Ms. Burke complains of includes her termination, it is not true that after she was terminated she was necessarily beyond the company's reach and without fear of further retaliation. Ms. Burke alleges that AT & T promised to keep her advised of job openings for which she was qualified. Even after her termination, then, by filing a second EEOC charge alleging retaliation, Ms. Burke could have provoked further retaliation resulting in the loss of information about new job openings and opportunities to reapply for work with AT & T. In other words, Ms. Burke might be as "gun shy"...