Agbati v. Va. Dep't of Agric. & Consumer Servs.

EHONAM M. AGBATI, Plaintiff, v. VIRGINIA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Defendant.

Civil Action No. 3:19-cv-512

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

April 6, 2020

OPINION

Ehonam "Roger" M. Agbati has sued his former employer, the Virginia Department of Agriculture and Consumer Services ("VDACS"), alleging discrimination based on race, color, and national origin. Agbati asserts claims under Title VII of the Civil Rights Act of 1964 and the Virginia Human Rights Act ("VHRA"). VDACS has moved to dismiss Agbati's complaint for failure to state a claim. For the reasons set forth below, the Court will grant in part and deny in part the motion to dismiss. The Court will deny the motion as to Agbati's failure to promote claim under Title VII, but will grant the motion as to Agbati's remaining claims. The Court, however, will grant Agbati leave to file an amended complaint as to his retaliation and pay discrimination claims under Title VII.

I. FACTS ALLEGED IN THE COMPLAINT

Agbati, an African American immigrant from Togo, began working at VDACS as a part-time hourly employee in July, 2013. Before working at VDACS, Agbati earned a bachelor's degree from Virginia Commonwealth University in political science, government, and politics, with a minor in nonprofit management and administration. In November, 2013, Agbati became a full-time employee at VDACS. Michelle Townsend served as Agbati's supervisor.

During Townsend's supervision, "there was harmony" among Agbati's team. (Dk. No. 3, at 9.) But the workplace "started going 'south'" when Alison Foster replaced Townsend as Agbati's supervisor. (Id.) VDACS hired Kathryn Land to fill Foster's role after Foster received a promotion. Around that time, VDACS also hired Alyssa Royer. During Royer's first week, Agbati noticed her "anti-social and discriminatory behavior." (Id. at 9-10.) Royer greeted Agbati with a "sarcastic smile" when they walked past one another in the hallway, and he noticed similar treatment toward other African American employees. (Id. at 10.)

When Agbati complained to Foster about the discriminatory behavior, Foster told him that others reported similar treatment. Foster also said that she would try to talk to Royer about the behavior. Royer then began closing her office door to avoid contact with "people she [did not] want to talk to." (Id.) Foster resigned in the fall of 2016. Around the same time as Foster's resignation, VDACS promoted Agbati's African American coworker, Joseph Cason.

Agbati alleges that Royer did not like how closely Agbati and Cason worked together. Agbati says that Royer created "a coalition of people who look like her" with whom she took walks, ate lunch, and took breaks. (Id.) Land (Foster's replacement) assumed "the role of the coalition's bully." (Id. at 11.) When Land heard Agbati answering calls, she slammed her door closed. Cason resigned after white female employees began complaining about him.

When a supervisory position became available in November, 2017, Agbati applied for the promotion. VDACS instead promoted Royer, a white woman. Agbati alleges that he had "the most seniority" and was "the most qualified person" for the promotion. (Id.) Agbati also says that VDACS promoted Royer because she had a "close relationship" with management. (Id. at 12.)

In April, 2018, Agbati filed a grievance with human resources, alleging that Royer created a hostile work environment. (See Dk. No. 3-9.) Agbati advanced his grievance through threelevels of internal review pursuant to the VDACS grievance procedure. After each reviewer concluded that his claim lacked merit, the Director of the Office of Equal Employment and Dispute Resolution denied Agbati's request to have his grievance reviewed at a hearing. Agbati alleges that he was "completely outcast[ed]" after he filed the grievance. (Dk. No. 3, at 8.)

Agbati later made several requests under the Virginia Freedom of Information Act ("Virginia FOIA") to determine his coworkers' compensation. Because VDACS determined that the cost to retrieve the records would exceed $200, VDACS charged Agbati a deposit pursuant to Va. Code § 2.2-3704(H).¹ (See Dk. No. 3-7, at 164.) Agbati refused to pay the deposit. Agbati later retrieved some salary information from public reports available online.

Agbati resigned from VDACS effective April 18, 2019. In his resignation letter, he cited the "employment/promotion discrimination perpetrated again [him] and the hostilities" resulting from his "actions to fight the injustices committed against [him]." (Dk. No. 3-6, at 5.)

After exhausting his administrative remedies, Agbati filed this case. Agbati's complaint raises the following claims²: a failure to promote claim under Title VII (Count One); a hostile work environment claim under Title VII (Count Two); a constructive discharge claim under Title VII (Count Three); a retaliation claim under Title VII (Count Four); a pay discrimination claim under Title VII (Count Five); and a claim under the VHRA (Count Six).

II. LEGAL STANDARD

VDACS has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion gauges the sufficiency of a complaint without resolving any factual discrepancies or testing the merits of the claims. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering the motion, a court must accept all allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

The principle that a court must accept all allegations as true, however, does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion to dismiss, a complaint must state facts that, when accepted as true, state a claim to relief that is plausible on its face. Id. "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." Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). When the plaintiff appears pro se, as Agbati does here, courts do not expect the pro se plaintiff to frame legal issues with the clarity and precision expected from lawyers. Accordingly, courts construe pro se complaints liberally. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). This principle of liberal construction has its limits. Id. Courts do not need to discern the unexpressed intent of the plaintiff or take on "the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Id.

III. DISCUSSION

A. Title VII Claims

1. Count One: Failure to Promote

In Count One, Agbati asserts that VDACS failed to promote him based on his race or nationality. To state a claim for discrimination claim based on a defendant's failure to promote, a plaintiff must plead facts showing that "(1) [he] is a member of a protected group, (2) there was a specific position for which [he] applied, (3) [he] was qualified for the position, and (4) [his employer] rejected his application under circumstances that give rise to an inference of discrimination." McCaskey v. Henry, 461 F. App'x 268, 270 (4th Cir. 2012) (per curiam). VDACS argues that Agbati fails to plead facts giving rise to an inference of discrimination.

Agbati, an African American immigrant from Togo, alleges that VDACS promoted Royer, a white woman, for the supervisory position over him. He says that he had "the most seniority" and was "the most qualified person" for the promotion. (Dk. No. 3, at 11.) Thus, Agbati alleges "that a member outside the protected class received a promotion instead of [him]," which "is sufficient to create an inference of discrimination." McCaskey v. Henry, 461 F. App'x 268, 270 (4th Cir. 2012) (per curiam). Because Agbati pleads sufficient facts to state a failure to promote claim, the Court will deny the motion to dismiss Count One.³

2. Count Two: Hostile Work Environment

In Count Two, Agbati alleges that VDACS maintained a hostile work environment in violation of Title VII. To state a hostile work environment claim, plaintiff must plead factsshowing that "(1) he experienced unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer." Perkins v. Int'l Paper Co., 936 F.3d 196, 207-08 (4th Cir. 2019). VDACS argues that Agbati fails to allege facts to meet the "severe or pervasive" standard.

Agbati's complaint "must clear a high bar" to meet the severe or pervasive standard. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). Title VII prohibits "extreme" conduct that "must . . . amount to a change in the terms and conditions of employment." Faragher v. Boca Raton, 524 U.S. 775, 778 (1998). It does not create "a 'general civility code,'" nor does it impose liability for "the ordinary tribulations of the workplace." Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). To determine if conduct qualifies as severe or pervasive, courts consider the totality of the circumstances, including (1) frequency; (2) severity; (3) whether the conduct was physically threatening or humiliating, or merely an offensive utterance; and (4) whether the conduct unreasonably interfered with the plaintiff's work performance. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).

Here, Agbati alleges that his supervisor...