Manager Can Sue for Retaliation

A district civil rights manager for the Virginia Department of Transportation has stated a Title VII claim for retaliation based on her allegations that she was pressured to change an investigative report responding to an African-American’s complaint of race discrimination and constructively discharged by intolerable working conditions; the Abingdon U.S. District Court denies VDOT’s motion to dismiss, but strikes plaintiff’s claims for punitive and liquidated damages.

Plaintiff served as Civil Rights Manager for VDOT’s Bristol District. In this capacity, she received a complaint filed by an African-American male who served as acting superintendent for VDOT’s Moccasin Gap headquarters, who alleged hostile and discriminatory work environment. Plaintiff formally accepted the complaint for investigation and a VDOT investigator was assigned to assist in the investigation.

Plaintiff alleges she was pressured and intimidated by defendants in an attempt to hinder the investigation. She claims she was subjected to daily hostility on the part of coworkers and ostracized by her coworkers. In the course of the investigation, she discovered the complainant was the lowest paid acting superintendent, and indeed was paid less than some of his subordinates. Although ultimately successful in her efforts to increase the complainant’s compensation, she encountered significant resistance. One defendant allegedly accused plaintiff of “being a snitch,” and another defendant allegedly suggests she revise the report or “start polishing [her] resume.” Plaintiff’s report concluded that certain individuals’ unprofessional and inappropriate treatment of the complainant was motivated by their desire to have another employee in that role, not by racial motivation. The report also concluded there was insufficient evidence to support claims of a racially offensive and hostile work environment, off pre-selection or of retaliation.

Plaintiff alleges she was targeted and ultimately constructively discharged by VDOT in retaliation for finding merit in the complaints. She alleges her car was repeatedly vandalized while parked in the VDOT employee parking lot and the new district administrator, in his first meeting with plaintiff, scolded her “for making the Bristol District ‘look bad’ and ‘like a bunch of racists.’” She alleged one defendant sped toward her in his car, nearly striking her and that she was unfairly disciplined for “falsification of a state record” and “unsatisfactory performance.” She also was accused of having a prior romantic relationship with another VDOT employee that biased her findings in the investigation of the hostile environment claim. She grieved her discipline and a hearing officer determined plaintiff was the target of a “witch hunt with a united group of Agency personnel and witnesses out to penalize and discredit the Grievant.” The hearing officer recommended that plaintiff’s written notice be withdrawn and that she receive back pay but these recommendations were ignored.

VDOT contends plaintiff engaged in advocacy for the complainant, but within the context of her job responsibilities entrusted to her by VDOT. Therefore, hers was not oppositional activity under § 2000e-3(a). There is a line of authorities that support the argument made by defendant about the “manager rule.”

Even applying the prevalent “manager rule,” the status of plaintiff’s conduct cannot be resolved on the present pleadings. It is plausible that plaintiff stepped outside her role of representing VDOT in her refusal to amend the final investigative report and in her opposition to the complainant’s pay disparity. Further, while her report finds insufficient evidence of any unlawful employment practice under Title VII, it is not clear that plaintiff lacked a reasonable, good faith belief that she was opposing an unlawful employment practice in conducting the investigation and in remedying the pay disparity.

I will not foreclose plaintiff’s claims at this stage of the case. However, the court will strike plaintiff’s claims for punitive and liquidated damages.

Atkins v. Va. Dep’t of Transportation (Jones) No. 1:13cv57, Dec. 19, 2013; USDC at Abingdon, Va.; Thomas E. Strelka for plaintiff; Sydney E. Rab, AAG, for defendant. VLW 013-3-655, 12 pp.