Virginia Lawyers Weekly VA Lawyers Weekly
Where a seasonal bell ringer for The Salvation Army was terminated shortly after he complained about white employees getting better, more lucrative bell ringing assignments, he plausibly alleged a claim for retaliation.
Background
In late 2021, George Weatherford was hired as a seasonal bell ringer for The Salvation Army. He alleges that The Salvation Army and his former manager, Antonio Hodges, discriminated against him when they terminated him approximately a month later. According to plaintiff, although defendants claimed that he was being fired because he had disrespected a Wal-Mart employee, he believes that he was actually fired because of his race and his disability status, and because he voiced complaints about inferior assignments while on the job, in violation of various federal civil rights protections. Defendants have filed a motion to dismiss.
Race discrimination
The court concludes that plaintiff strongly disapproved of the manner in which Hodges terminated him from his position with The Salvation Army. But plaintiff has failed once again to allege that his race played a role in the decision to terminate him. Rather he alleges that he was fired to keep Wal-Mart, “Salvation Army’s largest contributor,” happy.
While plaintiff, at various points in his amended complaint, alleges preferential treatment for white employees and grievances related to Hodges’s behavior in firing plaintiff, at no point does he allege that his race was a “motivating factor” in the decision to terminate him, nor does he allege facts that could support such an inference. Absent facts from which the court could infer that his race was a factor in the decision to fire him, plaintiff has failed to allege a plausible claim of race discrimination.
Retaliation
Giving plaintiff’s complaint a liberal construction, he alleges that, shortly after he complained about white employees getting better, more lucrative bell ringing assignments with The Salvation Army, he was terminated. Those allegations plausibly state a claim for retaliation. An employee’s complaint in response to a reasonable belief that he was illegally discriminated against satisfies the definition of a “protected activity.”
While defendants argue that the true reason for plaintiff’s termination was because of the incident at the Wal-Mart, plaintiff’s allegation that his firing took place shortly after he complained about more lucrative assignments (and therefore better odds at winning a valuable prize) for white employees is sufficient to establish causation in prima facie showing.
In its previous ruling on defendants’ first motion to dismiss, the court noted that it was unclear whether plaintiff had first exhausted his administrative remedies through the EEOC. In their brief in support of the present motion to dismiss, however, defendants included a copy of plaintiff’s EEOC charge. There, plaintiff alleges essentially all of the same major facts alleged in his amended complaint. For that reason, the court finds that plaintiff has exhausted his administrative remedies as to his retaliation claim.
As a final point, plaintiff’s Title VII claims are only proper against The Salvation Army, not Hodges. Accordingly, this claim cannot proceed against Hodges, and will be dismissed as to him.
Disability discrimination
Finally, defendants and the court construe plaintiff’s amended complaint to allege that Hodges also discriminated against him because he was disabled, in violation of the Americans with Disabilities Act. Unlike his claim of retaliation, however, plaintiff did not present a disability discrimination claim to the EEOC and has therefore failed to exhaust his administrative remedies as to any such claim.
Defendants’ motion to dismiss granted in part, denied in part.
Weatherford v. Salvation Army, Case No. 4:22-cv-00103, April 27, 2023. WDVA at Danville (Cullen). VLW 023-3-230. 12 pp.
