Where a Richmond police officer alleged that he was not promoted because of his race, national origin and age, and that a sergeant retaliated against him after he complained, his discrimination and retaliation claims survived the department’s motion to dismiss.
Naitraj David alleges that the City of Richmond Police Department or RPD, discriminated against him due to his race, national origin and age, and retaliated against him for participating in protected activities. David’s complaint arises from the promotion of another officer (David Marakovich), rather than David, to an acting sergeant position in the RPD. RPD moves to dismiss David’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
Race and national origin discrimination
David sufficiently pleads that the allegedly discriminatory selection of Marakovich negatively affected “his compensation, terms, conditions, or privileges of employment.” An employee’s opportunities for promotion and additional pay qualify as terms or conditions of employment.
David also sufficiently pleads that RPD did not select him as acting sergeant because of his race and national origin. David alleges that Marakovich – a white officer who lacked eligibility for the acting sergeant position – was selected over two minority master patrol officers, both of whom were eligible for that position. David also asserts that he was more qualified for the position because he had successfully served as an acting sergeant eight prior times, whereas Marakovich had never served in that role. When viewing these facts in the light most favorable to David, the court finds that David plausibly pleads claims of discrimination based on race and national origin.
David pleads, and RPD does not dispute, that he is more than 40 years old, that he met RPD’s employment expectations and that Marakovich is under the age of 40. RPD argues only that David did not suffer adverse employment action. But the failure to promote David to acting sergeant constitutes an adverse employment action because it caused David to miss out on a salary increase and a permanent promotional opportunity. David, therefore, sufficiently pleads an age discrimination claim under the Age Discrimination in Employment Act.
Because David both complained to RPD leadership and filed a formal EEOC complaint, he engaged in protected activities. David also sufficiently pleads that RPD took an adverse employment action against him. Sergeant Jeremy Nierman’s alleged statement that he wished to “take [David’s] stripes” plausibly constitutes a threat of possible termination if David continued to pursue his discrimination claims. David also plausibly suffered harm to his professional reputation when Nierman falsely told another sergeant that David and his partner “were out of their designated patrol areas.”
Moreover, the five instances involving Nierman that do not amount to materially adverse action on their own may demonstrate retaliation when viewed collectively, as they all occurred within a five-month span, and at least one caused him humiliation. Thus, David sufficiently pleads that RPD engaged in adverse employment action.
Finally, David alleges that Nierman began retaliating against him within two months of RPD’s human resources department concluding its investigation into David’s internal complaint. The incidents of retaliation continued through June 2021, a year after David had filed his EEOC complaint. David, therefore, satisfies the causation element.
Defendant’s motion to dismiss denied.
David v. City of Richmond Police Department, Case No. 3:21-cv-465, May 13, 2022. EDVA at Richmond (Gibney). VLW 022-3-208. 12 pp.