Mills v. City of Norfolk

RODNEY MILLS, Plaintiff, v. CITY OF NORFOLK, VIRGINIA, Defendant.

Civil Action No. 2:21-cv-185

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

August 18, 2021

MEMORANDUM OPINION AND ORDER

Raymond A. Jackson, United States District Judge

Before the Court is Defendant City of Norfolk, Virginia's ("Defendant" or "Norfolk") Motion for Judgment on the Pleadings ("Motion for Judgment") pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("FRCP") and Local Civil Rule 7(F), ECF No. 12, and Plaintiff Rodney Mills' ("Plaintiff or "Mills") Motion for Leave to File Amended Complaint ("Motion to Amend") pursuant to Rule 15 of the FRCP, ECF No. 15. Plaintiffs proposed amended complaint adds as a defendant Fire Chief Jeffrey Wise ("Chief Wise"), asserts one count against Chief Wise for racial discrimination and retaliation, and adds a retaliation claim against Norfolk, all under 42 U.S.C. §§ 1981, 1983. Defendant requests that the Court deny the Motion to Amend and grant its Motion for Judgment, arguing that Plaintiffs amendments are futile and do not cure any deficiencies to survive dismissal for res judicata. This matter has been fully briefed and is ripe for determination. For the reasons set forth herein, the Motion to Amend is GRANTED-IN-PART and DENIED-IN-PART and Defendant's Motion for Judgment is DENIED as moot.

I. FACTUAL & PROCEDURAL HISTORY

The facts, stated in the light most favorable to Plaintiff, are as follows: Plaintiff filed his original complaint on April 12, 2021. See Compl., ECF No. 1. According to the complaint, Plaintiff is an African American employee of Norfolk. Id. at ¶ 7. Plaintiff is employed as a Captain in the Norfolk Department of Fire & Rescue ("Fire & Rescue"). Id. Plaintiff began employment with Fire & Rescue beginning August 1996. Id. Plaintiff was promoted to Captain on June 13 2017. Id. at ¶ 8.

Fire & Rescue has not promoted an African American to Fire Chief or Deputy Fire Chief since 1990. Id. at ¶ 9. Moreover, despite approximately fifty African American applicants, only five African Americans have been promoted to Battalion Chief since 1990. Id. at ¶ 10. In 2014, Fire & Rescue Chief Jeffrey Wise made accommodations to several Caucasian employees, allowing them to re-take examinations to qualify for various promotions. Id. at ¶ 13.

In December 2018, Plaintiff sought a waiver to apply for a Battalion Chief position. Id. at ¶ 17. To be eligible for the Battalion Chief position, the candidate must have 2 years experienced as a Fire Captain. Id. at ¶ 14. Accordingly, Plaintiff would not become eligible for Battalion Chief until his two-year date - June 13, 2019. Id. at ¶ 16. Under the Civil Service Commission rules, however, a candidate's "years of service" is determined relative to the date that the promotion eligibility list for the position becomes effective. Id. That eligibility list is referred to as the "Certified Eligible List." Id. at ¶ 16. The Certified Eligible List for the 2019 Battalion Chief position did not become effective until July 10, 2019, almost one month after Plaintiffs eligibility date. Id. at ¶ 21.

To make the Certified Eligible List, applicants had to take an exam. Id. at ¶ 16. Plaintiff learned that because his eligibility date was not until June 2019, he would be unable to take the required exam in order to make the Certified Eligible List. Id. at ¶ 16. The complaint furthers that "Caucasian candidates who have not yet reached their 2 year anniversary as Captain at the time that the application period closes but who will reach their 2 year anniversary prior to the finalization and approval of the Certified Eligible List have historically been granted waivers to compete for an open position." Id. at ¶ 15. On December 26, 2018, Plaintiff submitted a written waiver request to Fire Chief Jeffrey Wise ("Chief Wise") in order to take the required exam so that he could compete for the Battalion Chief position. Id. at ¶ 17. Chief Wise denied Plaintiffs waiver request. Id. at ¶ 18.

On January 1, 2019, Fire & Rescue invited candidates to apply for the 2019 promotion process for the Battalion Chief position. Id. at ¶ 19. After the January announcement, Fire & Rescue made at least two retroactive accommodations to similarly situated Caucasian applicants, allowing them to apply for the Battalion Chief position. Id. at ¶ 20. Accordingly, those individuals obtained waivers to apply. Id. Without said waivers, the Caucasian applicants would have been disqualified. Id. Based upon these alleged facts, Plaintiff sued Norfolk for racial discrimination pursuant to 42 U.S.C. § 1981.

According to the proposed amended complaint, on November 8, 2019, Fire & Rescue promoted a Caucasian applicant to Battalion Chief. Proposed Am. Compl. ¶ 22, ECF No. 20-1. The Amended Complaint seeks to add as a defendant, Chief Wise based upon his role in denying Plaintiffs "request for a reasonable accommodation." Id. at ¶¶ 31-35. Moreover, Plaintiff alleges that since the original complaint was filed, Norfolk has participated in retaliatory conduct and fostered a hostile work environment. Id. at ¶¶ 36-54.

Specifically, Plaintiff alleges that "[w]ithin days of the date that the Complaint was tiled and served, Norfolk required that Mills take a drug test," even though "Norfolk had never required Mills to take a drug test" since he started in 1996. Id. at ¶ 39. Additionally, Plaintiff alleges that another chief within the department called Plaintiff while he was on vacation to "complain about 'Q&As' that Mills had completed in December 2020". Id. at ¶ 41. "Norfolk contacting Mills on vacation was a deviation" from ordinary practice. Id. at ¶ 42. Additionally, Norfolk issued a counselling form to Mills for the issue with the Q&As. Id. at ¶ 45. Plaintiff alleges that each of these acts were done in retaliation to Plaintiffs complaint. Id. Moreover, Plaintiff alleges that the conduct above was "unwelcome, hostile and based upon Mills' race." Id. at ¶ 51.

On June 23, 2021, Defendant filed its Motion for Judgment on the Pleadings. ECF No. 12. On June 30, 2021, Plaintiff filed is Motion to Amend. ECF No. 15. Both motions were fully briefed before the Court. ECF Nos. 13, 16-20. Neither party noticed a hearing and the Court finds a hearing unnecessary to resolve the parties' respective motions. Therefore, this matter is ripe for judicial determination.

II. LEGAL STANDARDS

A. Motion for Judgment on the Pleadings

"A motion for judgment on the pleadings under Rule 12(c) is assessed under the same standards as a motion to dismiss under Rule 12(b)(6)." Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013). Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of actions that fail to state a claim upon which relief can be granted. For the purposes of a Rule 12(b)(6) motion (or Rule 12(c) motion), courts may only rely upon the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnly. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). Courts will favorably construe the allegations of the complainant and assume that the facts alleged in the complaint are true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court "need not accept the legal conclusions drawn from the facts," nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc., v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).

A complaint need not contain "detailed factual allegations" in order to survive a motion to dismiss, but the complaint must incorporate "enough facts to state a belief that is plausible on its face." See Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). This plausibility standard does not equate to a probability requirement, but it entails more than a mere possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949, and Twombly, 550 U.S. at 557). To achieve factual plausibility, plaintiffs must allege more than "naked assertions ... without some further factual enhancement." Twombly, 550 U.S. at 557. Otherwise, the complaint will "stop[] short of the line between possibility and plausibility of entitlement to relief." Id.

B. Motion to Amend

Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading after the expiration of the time periods specified in Rule 15(a)(1) "only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). Rule 15(a)(2) further provides that leave to amend shall be freely given by the court "when justice so requires." Id. The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") has recognized three situations where a district court may deny leave to amend: (1) where allowing the amendment would prejudice the opposing party; (2) the moving party acted in bad faith; or (3) where the amendment would be futile. See Equal Rights Ctr. v. Niks Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010). An amendment is futile where the proposed amendment fails to conform to the requirements of the federal rules. Katyle v. Perm Nat'l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011); U.S. ex rel. Wilson v. Kellogg Brown &amp Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008). Ultimately, the decision whether or not to grant a party leave to amend is up to the discretion of the Court. See New Beckley Min....