Caucasian male sues for race discrimination

Where a former employee initially sued the Sheriff of Henrico County for Title VII race discrimination, he was allowed to amend his complaint to add a claim for race discrimination under 42 U.S.C. § 1981. The amendment was not futile, was not made in bad faith and would not prejudice the defendant.

Background

Christopher Shawn Moore is “a male Caucasian” who worked for Henrico County for approximately 28 years. Defendant Sheriff Alisa A. Gregory is an African American female and the elected Sheriff of Henrico County.

Moore filed his complaint on June 7, 2023, alleging two counts: (1) discrimination on the basis of race in violation of Title VII against Gregory in her official and individual capacities; (2) retaliation for protected speech under the First Amendment, pursuant to 42 U.S.C. § 1983, against Gregory in her individual capacity.

On Dec. 22, 2023, Moore filed a motion to amend complaint to allege few additional facts and add a third count, a claim for racial discrimination in violation of 42 U.S.C. § 1981.

Futility

Defendant first argues that amendment to add the new § 1981 claim would futile. Defendant argues that plaintiff has failed to allege “but-for” causation between his race and his termination because plaintiff’s race-based discrimination allegations are clouded by the “and” and “and/or” references to sex as an additional or alternative cause of his termination.

Defendant contends that by including allegations regarding sex as a potential cause in his termination, plaintiff “destroys his [§ 1981] claim.” The court cannot agree. Defendant is correct that “42 U.S.C. § 1981, although applicable to racial discrimination, does not apply to situations of sexual discrimination.”

However, all plaintiff must do is plead enough facts to plausibly allege a “but-for” causal link between his race and the adverse employment action taken against him. So, plaintiff’s burden is simply to initially plead “that race was a but-for cause of [his] injury,” not that it was the sole cause. Based on the first amended complaint’s allegations, even if sex was a potential cause in his termination (which plaintiff now disclaims), that does not, by itself, automatically logically discount race as a “but-for” cause.

Bad faith

Defendant contends that plaintiff’s motion to amend was filed in bad faith, as evidenced by the fact that plaintiff so moved around seven months after filing his original complaint. But in this circuit, “delay alone is not sufficient reason to deny leave to amend. The delay must be accompanied by … bad faith” as shown or inferred from the surrounding facts.

There is no credible allegation that plaintiff withheld any facts and tactically omitted those from his original complaint to gain some impermissible advantage. Rather, as defendant acknowledges, plaintiff’s new § 1981 claim is based primarily on the facts he pled in his original complaint. And the new facts plaintiff has pleaded were only “uncovered during discovery.” Given the circumstances here, the court does not find that plaintiff acted in bad faith.

Prejudice

Lastly, defendant argues that allowing amendment would result in undue prejudice to her case. But her arguments here are primarily predicated on alleged prejudice resulting from having to defend herself against plaintiff’s “new” sex discrimination theory.

But as mentioned above, plaintiff has withdrawn any sex discrimination theory in this case. So, that is no longer an issue. None of defendant’s arguments convince the court that there is the sort of prejudice here that requires overriding the Fourth Circuit’s liberal policy of allowing (at least one) amendment.

Plaintiff’s motion to amend granted.

Moore v. Gregory, Case No. 3:23-cv-370, Feb. 12, 2024. EDVA at Richmond (Young). VLW 024-3-071. 12 pp.