Virginia Lawyers Weekly VA Lawyers Weekly
Where a woman asserted a university’s failure to hire her to teach a class was because of her sex, but she failed to plead facts that the university was seeking applicants at the time, or that it continued to seek similarly qualified applicants after “rejecting” her, the failure-to-hire claim was dismissed.
Background
Natalia Wallace filed this Title VII action against Mary Baldwin University, or MBU. She claims MBU discriminated against her on the basis of sex when it chose not to issue her a contract to teach a summer course in 2021 and then retaliated against her for bringing the issue to the Equal Employment Opportunity Commission, or EEOC, by denying her a contract to teach that class in summer 2022. MBU has filed a motion to dismiss.
Timeliness
To pursue a Title VII claim in federal court in Virginia, a plaintiff must first file a charge of discrimination with the EEOC within 300 days of the date on which the “alleged unlawful employment practice occurred.” Wallace filed her EEOC charge on Dec. 13, 2021. Because any allegedly discriminatory conduct prior to Feb. 16, 2021, is not covered by Wallace’s charge and thus cannot give rise to a timely Title VII claim, the claim is untimely to the extent it seeks relief for that conduct.
Right to sue
MBU argues that Count One should be dismissed in its entirety because Wallace never alleged that the related charge of discrimination was ever dismissed by the EEOC nor that she received a right-to-sue letter. But, in certain circumstances, a plaintiff may bring a Title VII suit even when the EEOC has not issued a right-to-sue letter. The Fourth Circuit has held that “it is entitlement to a ‘right to sue’ notice, rather than its actual issuance or receipt,” that is required before one may file.
Here, however, Wallace filed this action on March 23, 2022, only 101 days after filing the EEOC charge. Nowhere in the complaint does she allege that EEOC dismissed her charge, or that the EEOC has not filed a related civil action or entered into a conciliation agreement. Even when the 180-day period passed (on June 11, 2022) and MBU had already filed its motion to dismiss (in which it pointed out this deficiency), Wallace never sought to amend the complaint to add the right-to-sue letter or any allegations concerning her entitlement to such a letter. The court finds that, as to Count One, Wallace had no right to sue at the time she filed this action because she had not then received a right-to-sue letter, nor was she entitled to one.
Employee
MBU independently argues that Count One must fail because Title VII only protects employees, and Wallace does not adequately allege that she was an employee of MBU at any time within the limitations period. However, Title VII also provides certain protections to applicants for employment.
To the extent that Wallace is pursuing a discrimination claim as an employee, the court cannot conclude that Wallace’s allegations support any inference that MBU was her employer for the purposes of Title VII. To the extent she is pursuing a failure-to-hire claim, because the allegations do not create a plausible inference that Wallace applied for a job which MBU was seeking applicants or that MBU continued to seek similarly qualified applicants after “rejecting” her, the failure-to-hire claim cannot survive MBU’s motion to dismiss.
Retaliation
MBU argues that Count Two should also be dismissed as a matter of claim processing because Wallace failed to exhaust her administrative remedies by failing to file another EEOC charge as to MBU’s alleged retaliation for filing the first charge. But the Fourth Circuit has expressly held that this is not required.
Turning to whether the claim is plausible, Wallace alleges that due to her December 2021 EEOC filing, MBU “refused to issue an employment contract.” Quite the contrary, at least subjectively, MBU’s decisions to not renew Wallace’s contract for the summers of 2019 or 2021 did not dissuade her from then filing the EEOC charge in December 2021, and MBU did substantially the same thing in 2022 as it had in the prior years.
Wallace’s retaliation claim also fails on causation. The complaint does not make any meaningful allegation that MBU’s decision not to offer Wallace a teaching contract in 2022 had any connection to Wallace’s filing.
Defendant’s motion to dismiss granted.
Wallace v. Mary Baldwin University, Case No. 5:22-cv-00017, Feb. 24, 2023. WDVA at Harrisonburg (Dillon). VLW 023-3-087. 22 pp.
