Martin-Bangura v. Virginia Dept. of Mental Health
| Decision Date | 31 July 2009 |
| Docket Number | Case No. 1:08cv1001. |
| Citation | 640 F.Supp.2d 729 |
| Parties | Ibrahim MARTIN-BANGURA, Plaintiff, v. Commonwealth of VIRGINIA DEPARTMENT OF MENTAL HEALTH, Mental Retardation and Substance Abuse Services, d/b/a Northern Virginia Training Center, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Christopher Russell Rau, Law Offices of Christopher R. Rau, Arlington, VA, for Plaintiff.
Gregory Clayton Fleming, Office of the Attorney General, Richmond, VA, for Defendant.
This Title VII gender, race, and ethnicity discrimination action presents the following threshold, potentially dispositive question:
Is a plaintiffs Title VII discriminatory discharge action barred by Virginia claim or issue preclusion rules where, as here, plaintiff litigated his wrongful termination claim, but not his discrimination claim, by (i) filing a grievance with his state employer and (ii) appealing the Hearing Officer's decision to the Circuit Court of Fairfax County pursuant to Virginia Code § 2.2-3000 et seq.?
Settled Virginia principles of claim preclusion compel an affirmative answer to this question. Because plaintiff elected to litigate his wrongful discharge claim in state court, and because he could have asserted his discrimination claims as part of his wrongful discharge action in that court, but failed to do so, his discrimination claim is now barred by Virginia's claim preclusion doctrine.
Plaintiff is an African American adult male born in Sierra Leone, West Africa. On July 19, 2006, he was terminated from his position as a Human Service Care Worker with defendant, the Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services at the Northern Virginia Training Center ("NVTC"). The events leading to and following his termination are pertinent to the pending motion and merit brief recounting here.1
On or about July 6, 2006, one of plaintiffs female co-workers, Julia Redden, reported that she had been the victim of sexual harassment by plaintiff. Following this report of sexual harassment, defendant directed Glenna Darlington, a veteran thirty-one year NVTC employee with EEO training in the investigation of sexual harassment claims, to conduct an investigation into the allegations. The investigation disclosed that Redden stated she had a casual, friendly relationship with plaintiff while she was employed at NVTC during her college summer break in 2005. She further stated, however, that plaintiff began to act in a far more familiar manner with her during her one month of employment over her winter break in 2006. Specifically, she alleged he patted her on the buttocks and touched her shoulder. Thereafter, according to Redden, during her 2006 two-month summer employment and prior to her beginning a permanent position elsewhere, plaintiff asked her if he could visit her in her college dorm room or in a hotel room. According to Redden, plaintiffs behavior grew more offensive during this period, and on separate occasions he pinned her against the wall and against a chair with his body so that she could feel his erection, which he referred to as his "black cobra." On each of these occasions Redden claims that she pushed plaintiff away, telling him to stop and that his conduct was inappropriate.
The investigation also included interviews of plaintiff, who denied the sexual harassment allegations, as well as interviews of other NVTC employees. At the conclusion of her investigation, Darlington prepared an investigation report containing her findings and including summaries of all of the interviews. Based on Darlington's investigation, defendant ultimately concluded that Redden's sexual harassment claim against plaintiff was valid and issued a Group III Written Notice terminating plaintiffs employment on July 19, 2006. Plaintiff then elected to challenge his termination through the state employee grievance procedure pursuant to Virginia Code § 2.2-3000 et seq. A description of this grievance procedure is important to the resolution of the question presented.
In Virginia, the Department of Employment Dispute Resolution ("EDR") is responsible for developing the Commonwealth's grievance procedure. See Virginia Code § 2.2-3003(A). The EDR grievance procedure begins with review of an employee's complaint by the first-step respondent, usually the employee's immediate supervisor. See EDR Grievance Procedure Manual §§ 2.4, 3.1, available at www.edr.virginia.gov. If the grievance is not settled during this first step of supervisory review, the matter then proceeds to a second-step respondent, a higher supervisor, who engages in unrecorded, informal fact-finding. Id. § 3.2. If the grievance is not resolved at the second step, the matter proceeds to a third level of internal managerial review. If this third level of internal review fails to resolve the issue, the matter may be qualified for a hearing. Id. § 3.3. If the Agency Head determines that the matter qualifies for a hearing, the human resources office requests the appointment of an independent state Hearing Officer. Id. § 4.2. If the Agency Head decides not to qualify the matter for a hearing, his decision may be appealed to the EDR Director, id. § 4.3, and then to the circuit court of that jurisdiction, id. § 4.4.
A grievance that is qualified for a hearing is heard by a neutral, state-appointed Hearing Officer. Virginia Code § 2.2-3005(B). The Hearing Officer is required by EDR's grievance procedure to record the hearing verbatim. EDR Grievance Procedure Manual § 5.6. With respect to the procedure of the hearing, the Hearing Officer has the authority, inter alia, (i) to hold a prehearing conference; (ii) to require parties to exchange a list of witnesses and documents; (iii) to issue orders for the appearance of witnesses and the production of documents; (iv) to administer oaths; (v) to admit or exclude evidence, including mitigating and aggravating evidence; (vi) to accept offers of proof of excluded evidence; and (vii) to render written decisions and provide appropriate relief. Id. § 5.7. The Hearing Officer must provide a written decision and may grant relief including reinstatement, award of back pay, an order requiring the agency to comply with applicable law, and certain attorneys' fees pertaining to termination and reinstatement, but not damages. Id. § 5.9. A Hearing Officer's decision is subject to three types of administrative review; a party may (i) request that the Hearing Officer reconsider his decision; (ii) appeal to the Director of the EDR on the ground that the hearing decision does not comply with the grievance procedure; or (iii) appeal to the Department of Human Resources on the ground that the hearing decision is inconsistent with state or agency policy. Id. § 7.2. Finally, if either party feels that the result of the hearing is contrary to law, he may seek review in the appropriate state circuit court. Id. § 7.3(a). Pursuant to Virginia Code § 17.1-405, a party may then appeal any unfavorable decision of the circuit court to the Virginia Court of Appeals.
In the instant case, the parties were unable to resolve the matter within the agency and plaintiffs claim of wrongful termination was then deemed qualified for a hearing. On December 28, 2006, plaintiff, represented by counsel, presented his case to the state Hearing Officer. In this respect, the Hearing Officer reviewed Darlington's investigation report, which included witness statements from nine NVTC employees, and then heard live testimony from eight witnesses: Darlington, Redden, plaintiff, the NVTC facility director, and four other NVTC employees. During the hearing, plaintiff had the opportunity to mitigate the disciplinary termination he received by offering evidence of discriminatory termination, but plaintiff chose not to address this issue.2 On January 3, 2007, relying primarily on the testimony of Redden and plaintiff, the Hearing Officer upheld the Group III Written Notice and termination.
Plaintiff then appealed the Hearing Officer's decision to the Circuit Court of Fairfax County, Virginia, pursuant to Virginia Code § 2.2-3006. There, plaintiff argued, by counsel, that the Hearing Officer's credibility determinations were unfounded and contrary to law because some of the witness statements reviewed by the Hearing Officer were unsigned, and some of the individuals who gave the statements did not testify at the hearing. The Hearing Officer's written decision, however, makes it clear that his decision was based primarily on his assessment of the credibility of Redden's testimony as compared to the credibility of plaintiff's testimony at the hearing. On April 6, 2007, the Circuit Court of Fairfax County, Virginia, entered a final order denying plaintiffs appeal and affirming the Hearing Officer's decision. Although plaintiff had the option of appealing the Fairfax County Circuit Court's decision to the Virginia Court of Appeals, he chose not to do so.
Prior to the entry of Fairfax County Circuit Court's final order, plaintiff had chosen to challenge his termination by filing a charge with the EEOC under Title VII of the Civil Rights Act. On June 23, 2008, after the entry of the state court's final order, the EEOC issued plaintiff a "right to sue" letter with respect to his EEOC charge, and on September 24, 2008, plaintiff filed the instant complaint alleging race, ethnicity, and gender discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), by Virginia's Department of Mental Health, Mental Retardation, and Substance Abuse Services. Specifically, plaintiff claims here that his termination was a result of race, ethnicity, and gender discrimination and alleges a disparity between the discipline he received and the discipline that others of non-African origin received for similar offenses.
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