Johnson v. Portfolio Recovery Assoc.s LLC

• Decision Date: 12 June 2009
• Docket Number: Civil Action No. 2:08cv555.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Mark JOHNSON, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

682 F.Supp.2d 560

Mark JOHNSON, Plaintiff,

v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

Civil Action No. 2:08cv555.

United States District Court,

E.D. Virginia,

Norfolk Division.

Decided: June 12, 2009.

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Lisa A. Bertini, Esq., Hyojin Bae, Esq., for Plaintiff.

David C. Burton, Esq., Sara B. Rafal, Esq., for Defendant.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on a Motion to Dismiss filed by defendant Portfolio Recovery Associates, LLC ("PRA" or "Defendant"), and the oral Motion to Amend the Complaint, made by plaintiff Mark Johnson ("Plaintiff or "Johnson"). Oral argument has taken place, and the motions are now ripe for decision.

I. Factual and Procedural History

A. Factual history ¹

Defendant is in the business of purchasing, and then collecting, delinquent debt. (Compl. ¶ 21, Docket No. 1.) Plaintiff was hired by Defendant on July 15, 2003 as an Assistant Vice President, (Id. at 22.) He worked in Defendant's non-Bankrupt Acquisitions unit and was granted the same access, expectations and substantially the same authority as Craig Grube ("Grube"), an Executive Vice President. (Id. at ¶ 29.) Michael Petit ("Petit") was hired as a Senior Vice President shortly afterwards (in July 2003), and Chris Graves ("Graves") was hired as a Vice President in December 2005. (Id. at ¶¶ 30, 35.) According to Plaintiff, all three men had substantially similar job duties; however, Petit and Graves are Caucasian, and both men received disproportionately more compensation than Plaintiff, an African-American. (Id. at ¶¶ 3, 36, 56, 67.)

Based on Plaintiffs observations of the respective contributions made by himself and Petit, Plaintiff met with his superior, Grube, in July 2005 and requested a promotion. (Id. at 61.) Plaintiffs title was changed to Vice President. However, such title change did not result in a substantial pay increase "beyond the customary five to six percent (5-6%) increase that he had received before and after the title change." (Id at ¶¶ 61, 63.) In July 2007, Plaintiff again met with Grube to discuss his compensation, and asked "why Petit was being compensated more than he was." (Id. at ¶ 64.) No "adequate action was taken" regarding Plaintiffs pay following this discussion. (Id. at ¶ 66.) Plaintiff does not allege that he mentioned race during any of the meetings with Grube or that he ever complained that he was compensated unfairly due to his race.

On April 28, 2008, Plaintiff was terminated by Defendant "for allegedly violating [his] Confidentiality Agreement" with Defendant when he disclosed an internal business report to his attorney. (Id. at 11 70.) Other than his termination, Plaintiff received no disciplinary action, warning or reprimand. (Id. at ¶ 71.)

B. Procedural history

Plaintiff filed an administrative Charge of Discrimination jointly with the Virginia Council on Human Rights and the Equal Employment Opportunity Commission ("EEOC") on May 12, 2008. (Id. at ¶ 18.) The EEOC issued a Notice of Right to Sue letter to Plaintiff on November 21, 2008. (Id. at ¶ 19.) Plaintiff filed suit in this Court on November 24, 2008. In counts I and II of his Complaint, Plaintiff claims that Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000) ("Title VII"), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981"), by denying him fair compensation because of his race. (Id. at ¶¶ 75, 85.) In counts III and IV of his Complaint, Plaintiff claims that Defendant again violated Title VII and § 1981 by retaliating against him when terminating his employment "for sharing relevant or potentially relevant information with an attorney to pursue race discrimination claims." (Id. at ¶¶ 95, 102.)

Defendant subsequently filed a motion to dismiss, which was fully briefed by both parties. Plaintiffs counsel later sent the Court a letter, which was not filed, attaching a copy of newly enacted federal legislation that Plaintiffs counsel said "overturned" relevant Supreme Court case law.²Upon receipt of such letter, Defendant requested leave from the Court to file a supplemental brief addressing the implications of the newly enacted legislation. The Court granted such leave, and Defendant filed its supplemental brief on March 6, 2009. Oral argument took place on June 1, 2009.

II. Standard of Review

A. Rule 12(b)(1)

Defendant seeks to dismiss Plaintiffs Title VII retaliation claim pursuant to Federal Rule of Civil Procedure 12(b)(1), which permits a defendant to move for dismissal of a claim due to the court's lack of subject matter jurisdiction. A.W. ex rel. Wilson v. Fairfax County Sch. Bd., 548 F.Supp.2d 219, 221 (E.D.Va.2008). Having filed this suit and thereby seeking to invoke the jurisdiction of the Court, Plaintiff bears the burden of proving that this Court has subject matter jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991).

[2, 3] When considering a Rule 12(b)(1) motion to dismiss, unlike a motion to dismiss pursuant to Rule 12(b)(6), "the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Government of Indonesia, 370 F.3d 392, 398 (4th Cir.2004) (citing Adam, s v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). Therefore, this Court may weigh the evidence and resolve factual disputes regarding jurisdiction by considering evidence outside the Complaint. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). Even though such a Rule 12(b)(1) motion to dismiss is not converted into a motion for summary judgment, district courts "should apply the standard applicable to a motion for summary judgment, under which the nonmov- ing party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768. Only when "the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law" should the Court grant the motion. Id.

B. Rule 12(b)(6)

Defendant also seeks to dismiss Plaintiffs Title VII and § 1981 race discrimination claims, as well as his § 1981 retaliation claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), which permits a defendant to seek dismissal based on the plaintiffs "failure to state a claim upon which relief can be granted." Fed. R.Civ.P. 12(b)(6). A motion to dismiss for failure to state a claim should be granted if the complaint does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A 12(b)(6) motion tests the sufficiency of a complaint and "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Accordingly, a court should "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." Eastern, Shore Markets, Inc. v. J.D. Associates Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). Although the truth of the facts alleged is assumed, courts are not bound by the "legal conclusions drawn from the facts" and "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

[7, 8] A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R.Civ.P. 8(a)(2), so as to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Fair notice is provided by setting forth enough facts for the claim to be "plausible on its face" and "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 570, 127 S.Ct. 1955 (internal citations omitted). "Rule 12(b)(6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations." Id, at 555, 127 S.Ct. 1955 (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). A complaint may therefore survive a motion to dismiss "even if it appears 'that a recovery is very remote and unlikely.' " Id, (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

Pursuant to Rule 12(d), if matters outside the pleadings are submitted in conjunction with, or in opposition to, a 12(b)(6) motion the court must either exclude such materials from consideration or convert the motion into a motion for summary judgment. Fed.R.Civ.P. 12(d). If the motion is converted, the court must afford the parties a reasonable opportunity to present additional pertinent materials. Id. However, the prohibition on considering matters outside the pleadings does not apply to documents expressly relied on in a complaint.³ See Lorenzo v. Rumsfeld, 456 F.Supp.2d 731, 734 (E.D.Va.2006) (citing Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir.1999)) ("[A] court can consider documents outside of the pleadings, without converting the motion to one for summary judgment, so long as the documents are integral to and explicitly relied on in the complaint."); Davis v. George Mason Univ., 395 F.Supp.2d 331, 335 (E.D.Va. 2005) (quoting Gasner v. County Dinwid-die, 162 F.R.D. 280, 282 (E.D.Va.1995)) ("In the Eastern District of Virginia, 'when a plaintiff fails to introduce a pertinent document as part of his...