Carter v. Rental Uniform Service of Culpeper, Inc., Civ. A. No. 96-0071-C.

• Decision Date: 16 September 1997
• Docket Number: Civ. A. No. 96-0071-C.
• Parties: Sheila CARTER, Plaintiff, v. RENTAL UNIFORM SERVICE OF CULPEPER, INC., Christopher Dods, Defendants.
• Court: U.S. District Court — Western District of Virginia

977 F.Supp. 753

Sheila CARTER, Plaintiff, v. RENTAL UNIFORM SERVICE OF CULPEPER, INC., Christopher Dods, Defendants.

Civ. A. No. 96-0071-C.

United States District Court, W.D. Virginia, Charlottesville Division.

September 16, 1997.

Gail Starling Marshall, Rapidan, VA, Rebecca Claire Guthrie, Richmond, VA, for Plaintiff.

Thomas Marshall Wolf, Karen Lee Starke, Mezzullo & McCandlish, Richmond, VA, for Defendants.

MEMORANDUM OPINION

MICHAEL, Senior District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(13), the court, by Standing Order, referred this employment discrimination action alleging to the Honorable B. Waugh Crigler, United States Magistrate Judge, for proposed findings of fact and a recommended disposition, subject to review by this court.

On July 16, 1997, the Magistrate Judge filed his Report and Recommendation, which recommends that defendants' February 10, 1997 motion to dismiss be denied as to COUNT I (discriminatory termination under Title VII, 42 U.S.C. § 2000e et seq.), COUNT II (retaliatory termination under Title VII), COUNT VI (discriminatory termination under 42 U.S.C. § 1981), VII (retaliatory termination under § 1981), COUNT VIII (discriminatory hiring practices under § 1981), and COUNT IX (racial harassment under § 1981).

The Report and Recommendation further urges that defendants' motion to dismiss be granted as to COUNT III (discriminatory failure to rehire under Title VII), COUNT IV (termination for serious illness in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et. seq.), COUNT V (racial harassment under Title VII), and COUNT X (Virginia law claim for racially discriminatory discharge).

As to the FMLA charge, the Report and Recommendation finds that Ms. Carter's first amended complaint in COUNT IV did not sufficiently allege willfulness, and, thus, the two-year statute of limitations governed, barring the claim as untimely. Upon plaintiffs filing of her second amended complaint the Report and Recommendation finds that the plaintiff now sufficiently has alleged willfulness on the part of the individual defendant, Mr. Dods, so as to bring plaintiffs claim within the three year statute of limitations, 29 U.S.C. § 2617(c)(2). The Report and Recommendation finds, however, that even the longer limitations period does not avoid the larger deficiency of COUNT IV. On the pleadings as they exist even after the second amendment, plaintiff fails to plead a sufficiently severe medical condition even to apply under the terms of the FMLA. For this reason, the Magistrate Judge urges that COUNT IV be dismissed.

The defendants and the plaintiff filed objections to the Report and Recommendation on July 30, 1997 and August 4, 1997, respectively. Said objections having been timely and appropriately lodged, this court has undertaken a de novo review of the case. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir. 1982). After a thorough examination of the parties' objections, the supporting memoranda, the applicable law, the documented record, and the Report and Recommendation itself, this court overrules all objections. The Report and Recommendation, filed July 17, 1997, shall be, and hereby is, adopted for the reasons stated below.

I. Background

A. Factual Background

Plaintiff Sheila Carter worked for defendant Rental Uniform Service of Culpeper, Inc. ("RUS") as a seamstress from September 1993 until October 1994, when she was terminated. Defendant Christopher Dods was an executive with RUS from January 1994 to February 1995, and now works for RUS's parent corporation. According to plaintiffs allegations, during plaintiffs tenure at RUS, no blacks held supervisory positions in the company and blacks were subject to racial epithets, of which supervisory personnel were aware. When plaintiff complained of this harassment, she allegedly was told not to cause trouble or she would be fired.

Ms. Carter alleges that in October 1994, RUS instituted a new point system, to be applied retroactively, to deal with absenteeism problems among its workforce. Pursuant to this policy, Ms. Carter was assigned five points for prior absences and was told that one additional point would lead to termination. On October 20, 1994, Ms. Carter became ill during working hours and went to the hospital emergency room, from where she called RUS to inform it that she had been given medication and had been instructed to take two days off from work. Despite this instruction, plaintiff returned to work directly from the hospital and, that same day presented her employer with a supporting doctor's note. RUS gave her permission to leave work that day. Ms. Carter then came to work on the next business day which fell during the following week. That week, Ms. Carter was scheduled to take her vacation, but RUS requested that she come to work to make up for the time she had missed, and plaintiff complied. When she arrived at work, plaintiff was told to go home because she had exceeded her maximum allotted points for absenteeism. Subsequently, plaintiff was fired.

Four of the twenty-six other employees in plaintiff's department allegedly also were terminated for absenteeism; all of them are black. Plaintiff alleges that whites with the same number of absences were not fired.

In November 1994, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging racially-motivated discharge. Exhibit A, attached to Defendants' Motion to Dismiss ("I believe I was discriminatorily discharged because of my race, Black, in violation of Title VII...."). Apart from this allegation, plaintiff did not elaborate on any other alleged form of discrimination she suffered.

In March 1995, plaintiff reapplied for a position with RUS. The manager told plaintiff that RUS had considered rehiring her but could not do so based on paperwork it had received from the EEOC. Plaintiff alleges that she was qualified for the position, and similarly-situated white women with like qualifications were rehired.

B. Procedural Background

Ms. Carter filed the instant action against RUS on September 10, 1996, alleging violations of Title VII, 42 U.S.C. § 2000e et seq. (COUNTS I, II, III, and V)¹ and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (COUNT IV).² In her complaint, plaintiff indicates that she intends to seek class action certification.

In COUNT I, Ms. Carter alleges that RUS applied the new, retroactive absenteeism policy in a way that discriminated against blacks and that she was terminated as a result of a discriminatory application of that absenteeism policy. In other words, she claims she was fired because she is black. In COUNT II, Ms. Carter alleges that RUS failed to rehire her in retaliation for her decision to file a complaint of racial discrimination against it with the EEOC. In COUNT III, plaintiff alleges that RUS failed to rehire her because of her race. In COUNT IV, Ms. Carter alleges that RUS unlawfully terminated her for an absence resulting from a serious illness that rendered her incapable of performing her job. In COUNT V, plaintiff alleges that she was subjected to racial harassment. Plaintiff's first complaint was never served on RUS.

On December 23, 1996, Ms. Carter filed a first amended complaint, in which she added defendant Christopher Dods, an executive and manager of RUS. Plaintiff served this complaint within one hundred twenty (120) days of the filing of the original complaint. Ms. Carter re-alleged the Title VII and FMLA claims in the amended complaint. Plaintiff modified COUNT IV, however, to name Mr. Dods as a defendant; further, she added an allegation of willfulness on the part of defendants. Ms. Carter also added five counts to the amended complaint: COUNTS VI (discriminatory termination), VII (illegal retaliation), VIII (discriminatory refusal to rehire), and IX (racial harassment) mirror the Title VII claims, only they are brought pursuant to 42 U.S.C. § 198.³ COUNT X alleges a claim under Virginia law for racially discriminatory discharge in violation of the Commonwealth's public policy. Ms. Carter names RUS as a defendant in all counts, but she names Mr. Dods as a defendant only in COUNT IV.

Defendants move to dismiss the action under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. They argue (1) that plaintiff has failed to exhaust administrative remedies as to COUNTS II, III, and V; (2) that COUNTS VI, VII, VIII, IX and X are barred by the statute of limitations; and (3) that COUNTS I, II, IV, and VI contain insufficient factual allegations.

II. Burden Applicable to Defendants' Motion to Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure "failure to state a claim upon which relief can be granted" provides grounds for dismissal. For purposes of a Fed.R.Civ. P. 12(b)(6) motion, all factual allegations in the plaintiffs complaint must be accepted as true. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir.1994). The plaintiffs complaint ought not be dismissed unless it is apparent that the plaintiff "would not be entitled to relief under any facts which could be proved in support of [his] claim[s]." Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure a complaint must be dismissed if there is "lack of jurisdiction over the subject matter." On a Fed.R.Civ.P. 12(b)(1) motion, the court may have to resolve factual disputes to determine whether it has subject matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).

III. Sufficiency of Factual Allegations in COUNTS I and VI (Discriminatory Termination) and COUNTS III and VIII (Discriminatory Failure to Rehire

The tests for racially motivated termination and failure to rehire under Title VII and § 1981 are the same. Patterson v. McLean Credit Union, 491 U.S. 164, 186-87, 109...