Federal right to sue notice does not apply to Virginia Values Act

Claims of disability discrimination and retaliation against an employer survived summary judgment, but the Western District of Virginia said the worker failed to administratively exhaust his claims under the Virginia Values Act, or VVA.

In Moss v. Saja Restaurant Group LLC (VLW 023-3-218), Aarin Moss argued that a workshare agreement permitted him to rely on a federal right to sue letter to satisfy his notice requirements under the VVA.

U.S. District Judge Thomas T. Cullen disagreed and dismissed his state law claims without prejudice for Moss to seek the proper notice and refile.

“[A]s Saja correctly points out,” he wrote, “the only court to address this argument held that a separate right to sue notice was required, regardless of whether a workshare agreement was in place at the time a complaint was made or the investigation of that complaint was concluded.”

Cullen also refused to dismiss Moss’s ADA claims but found that he failed to establish race-based conduct necessary to support Title VII claims.

Bullying

Aarin Moss is a 23-year-old biracial man who suffers from a severe lung disease which forced him to undergo a double lung transplant. As a result of Moss’s bones deteriorating with osteoporosis, he needs to take frequent breaks.

Moss began working as a carhop at a Sonic restaurant in Waynesboro owned by Saja Restaurant Group in 2019. His store manager, Taylor Davis, accommodated Moss’s need to take breaks when he was in pain.

After the COVID outbreak, Moss started working for Saja as a cook. In June 2021, Saja hired Joe Maturo who began bullying Moss about his disability. Moss complained to Davis numerous times. According to Moss, Davis said she would deal with Maturo but the bullying continued.

On July 4, 2021, Maturo was bullying Moss and threatened to fight him in the parking lot. Davis told them to fight somewhere else. Feeling threatened, Moss called his mom, Stefanie Holloway, for a ride. Maturo confronted them in the parking lot and made comments about Moss being lazy.

Two minor female employees soon confronted Holloway in the parking lot. When Moss stepped in, one of the minors pushed him and they called him racial epithets.

Davis observed the confrontation but didn’t intervene. When Moss tried to get his tip money, Davis allegedly threw it at him and told him to leave.

The claims

Saja investigated the incident and fired Davis, as well as the two minors; Maturo had already quit. Nobody from Saja spoke to Moss. Saja removed Moss from the schedule, thus terminating his employment.

Moss filed a charge of discrimination with the Equal Employment Opportunity Commission, or EEOC, and the Virginia Council on Human Rights. He filed suit after receiving a right to sue letter from the EEOC.

The complaint alleged discrimination, harassment and retaliation based on race and disability in violation of the Americans with Disabilities Act, or ADA, Title VII of the Civil Rights Act, and the VVA.

Saja moved for summary judgment against all claims.

Right to sue

Saja said it was entitled to summary judgment on Moss’s VVA claims because he never received the statutory notice of right to sue and thus hadn’t fully exhausted his remedies.

Moss said a valid workshare agreement meant the EEOC notice also exhausted his VVA claims.

Effective July 1, 2020, the VVA “outlines the process by which someone can make a complaint with the Virginia Office of Civil Rights” or FEPA. It provides that “‘[p]rivate citizens may only sue under the VHRA once they have “been provided a notice of [their] right to file a civil suit pursuant to §2.2-3907,”’” Cullen explained.

The judge acknowledged Moss’s point that Virginia amended the VVA “to state ‘that any regulations implementing the provisions of §2.2-3907 of the Code of Virginia, as created by this act, shall, so far as practicable, conform to the practices and timelines of the Equal Opportunity Employment Commission with respect to analogous federal laws and regulations, for the purpose of maintaining a workshare agreement with that agency.’”

But here, Cullen agreed with Saja that, regardless of whether a workshare agreement was in place when a complaint was made or the investigation was completed, “a separate right to sue notice was required.”

In 2022’s Jordan v. School Board of the City of Norfolk, the Eastern District of Virginia held that “[o]nly the presentment of claims and the exhaustion of the administrative remedies before the Virginia Attorney General’s Office of Civil Rights satisfy the prerequisite of filing a discrimination lawsuit in Virginia’s state courts,’” the judge pointed out.

After reviewing the workshare agreement and the statute, the Jordan court determined that “the EEOC right-to-sue notification did not also serve as FEPA’s right-to-sue notification” and that “courts in Virginia have treated the two processes [EEOC and FEPA] as separate.”

Cullen pointed out that “other ‘deferral’ states that analyzed the issue reached the same conclusion — exhaustion of the EEOC’s requirements does not automatically exhaust the state remedies.”

Further, the judge noted that the workshare agreement cited by Moss expired before he filed his EEOC charge. He dismissed the VVA claims without prejudice so Moss can request the proper right-to-sue notice and refile.

Remaining claims

Finding that a reasonable jury could believe that the alleged harassment was directly related to Moss’s disability and was sufficiently severe or pervasive, Cullen refused to dismiss his ADA discrimination and harassment claims.

However, where Moss only alleged race-based harassment involving the two minor employees who called him a racial epithet, the judge said “this one-off incident does not rise to the level of being sufficiently severe or pervasive” to support a claim under Title VII.

Here, Moss was engaged in protected conduct when he complained to Davis about the bullying prior to his termination.

“Given the close temporal proximity between the complaints and Moss’s termination,” Cullen said, “a reasonable jury could believe that Moss’s complaints regarding Maturo’s disability-based bullying was a ‘but-for’ cause of his termination.”

Finally, while his ADA retaliation claim survived, the judge said Moss’s Title VII retaliation claim failed because he never complained about race harassment prior to his termination.

‘Crickets’

Roanoke litigator Terry N. Grimes, who represents Moss, said he “begged” the Office of the Attorney General of Virginia to take a position on the VVA notice issue with an opinion or amicus brief.

“I’m the president of Virginia Employment Law Association this year so our organization has done just that and it’s just crickets, just crickets out there,” he told Virginia Lawyers Weekly. “That’s pretty frustrating.”

Grimes doesn’t think anybody intended to require “the quintessential duplicative litigation” pending in two different forums, adding that it’s not a good use of judicial resources or parties’ money.

“Traditionally, claims against a larger employer in the Office of Civil Rights would simply default to the EEOC,” he explained. “The OCR does nothing with the complaint, doesn’t investigate, no letters, nothing. So when you get the EEOC right-to-sue notice and then request a notice from the OCR, they wonder why we’re asking them for it.”

To procure the notice, Grimes pointed out that while a mandamus petition was an available tool, “we don’t need a new hobby.”