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Court tosses employee’s disparate treatment claim

Where a tester/trainer for the Virginia Department of Motor Vehicles, or DMV, asserted a claim for Title VII discrimination, but he failed to identify his protected class or any evidence of discriminatory intent, his disparate treatment claim was dismissed.


Keith Alston worked as a part-time tester/trainer for the Virginia Department of Motor Vehicles, or DMV, from January 2018 through March 2020. Although his contract required that he not exceed 29 hours per week or 1,500 hours within the calendar year, Alston alleges that he regularly worked 40 hours or more per week.

Alston asserts claims against three DMV employees (William Anderson, Jeffrey Harper and Tracey Keller) for violations of the Fair Labor Standards Act, or FLSA, Title VII of the Civil Rights Act of 1964 and various Virginia statutes. The defendants moved to dismiss Alston’s complaint for lack of subject matter jurisdiction and failure to state a claim.


The DMV, as a department of the Commonwealth of Virginia, enjoys the privileges of immunity. This immunity extends to state officials sued in their official capacity but does not extend to its officials sued in their individual capacity. When a plaintiff names a defendant in an individual, yet nominal, personal capacity so that the state is the “real, substantial party in interest,” state sovereign immunity attaches to the respective state officials.

Here, Alston alleges that Keller and Harper had the authority to authorize pay for all hours he worked, which the DMV would have funded. Keller and Harper’s actions, therefore, were inextricably tied to their official duties, and the DMV, not Keller and Harper, would have paid the additional hours had they approved them.

Moreover, Alston has not alleged that Keller or Harper acted to further personal interests distinct from the DMV’s interests or otherwise acted ultra vires. For these reasons, the court will treat the DMV, and through it, the Commonwealth of Virginia, as the real party in interest in this case. Eleventh Amendment immunity therefore applies.

Alston can overcome the Eleventh Amendment immunity bar if one of three exceptions applies: (1) Congress abrogated state sovereign immunity; (2) the plaintiff seeks only prospective or injunctive relief against a state agent or (3) the state expressly consents to suit or waives its immunity. In this case, none of the sovereign immunity exceptions apply.

Title VII

A plaintiff alleging employment discrimination under Title VII can state a claim by alleging: (1) “‘direct or circumstantial evidence’ that discrimination motivated the employer’s employment decision” or (2) facts sufficient to plausibly establish a prima facie claim under the McDonell Douglas framework. Here, Alston seems to rely on the first method. He therefore must plausibly allege “(1) direct or indirect evidence of intentional discrimination (2) against plaintiff for belonging to a protected class, which motived (3) an adverse employment action.”

Alston alleges that his superiors asked him to complete tasks that he contends “could have been completed by … the other tester with no assignments,” and he asserts that the other tester ‘was hired [one] month before [him] … but [was not] … required to contribute to the project.” Yet Alston fails to allege his membership in a protected class under Title VII.

Moreover, even if the court could discern his membership in a protected class, he fails to identify any direct or circumstantial evidence of discriminatory intent on the part of the defendants or otherwise establish that the defendants assigned the two testers different work to discriminate against Alston based on his protected status. Accordingly, Alston fails to state a disparate treatment claim under Title VII.

Virginia claims

Alston also brings state law claims for unpaid wages in violation of Virginia retaliation, overtime, holiday pay and human rights act statutes. Because the court will dismiss Alston’s federal claims, leaving only state law claims, the court lacks federal question jurisdiction. Further, because Alston only asserts claims against Virginia citizens, the court lacks diversity jurisdiction.

Moreover, this case is in the early stages of litigation, so the “values of judicial economy, convenience, fairness, and comity” weigh in favor of dismissing the state law claims. Accordingly, the court declines to exercise supplemental jurisdiction over Alston’s state law claims and will dismiss those claims without prejudice.

Defendant’s motion to dismiss granted.

Alston v. Anderson, Case No. 3:21-cv-733, Jan. 25, 2023. EDVA at Richmond (Gibney). VLW 023-3-031. 13 pp.

VLW 023-3-031

Virginia Lawyers Weekly