Kevin Marquez (KG&P MVM Inc CEO) Named in Gay Discrimination Hearing

VIRGINIA:
IN THE CIRCUIT COURT FOR FAIRFAX COUNTY
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***** OSMAN, :
Plaintiff, : Case No.
vs. : CL24-352
CARMEN CAMPOS, et al., :
Defendants. :
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HEARING BEFORE THE HONORABLE RANDY I. BELLOWS

Fairfax, Virginia
Friday, May 10, 2024
10:24 a.m.
Job No.: 537619
Pages: 1 - 56
Recorded By: Lee Utterback-Pair

Hearing, held at the location of:

FAIRFAX COUNTY CIRCUIT COURT
4110 Chain Bridge Road
Fairfax, Virginia 22030
Pursuant to agreement, before Lee UtterbackPair, Court Reporter.

ON BEHALF OF THE PLAINTIFF:

ELAINE L. JARVIS, ESQUIRE
JARVIS LAW, PLLC
128 N. Royal Avenue
Front Royal, Virginia 22630
540.546.0220

ON BEHALF OF THE DEFENDANTS:

ALEXANDER P. BERG, ESQUIRE
LITTLER MENDELSON, P.C. (MCLEAN)
1800 Tysons Boulevard
Suite 500
McLean, Virginia 22102
703.442.8425

ALSO PRESENT:
***** OSMAN - Plaintiff

PROCEEDINGS
(Whereupon, the court reporter was duly sworn.)
THE COURT: Okay.
MS. JARVIS: (Indiscernible) --
THE COURT: And --
MS. JARVIS: -- my client.
THE COURT: -- you?
MR. OSMAN: ***** Osman.
THE COURT: What?
MR. OSMAN: ***** Osman.
THE COURT: Okay, Mr. Osman. All right.
All right. So let -- before I hear from you, Mr.
-- please have a seat. Before I hear from you, Mr.
Berg, let -- let me identify what I think are the
legal issues that the Court needs to resolve in
order to resolve the plea in bar and the demurrer.
MR. BERG: Yes, Your Honor.
THE COURT: You can have a seat.
MR. BERG: Thank you.
THE COURT: And it would make sense to
the Court to address the arguments in this order,
which probably is not the order in which you were
prepared to address the argument, but --
MR. BERG: I'm happy to do my best, Your
Honor.
THE COURT: Okay. The first issue is
does the Plaintiff have to exhaust all
administrative remedies under the VHRA before
filing a private right of action? That's the first
question. Second is the factual question, if the
Plaintiff must exhaust administrative remedies,
have they done so? The third issue is, if the
Plaintiff has exhausted all administrative remedies
under the VHRA, can the complaint be brought
against the corporate defendants not named in the
charge and right to sue letter? That's the -- what
could be called a substantial identity issue. The
next issue is can the complaint be brought against
the individual defendants? In other words, is
there individual liability under the VHRA? The
next issue is can the complaint raise charges of
discrimination that were not in the charge or right
to sue letter? And does the complaint -- and
finally, does the complaint allege sufficient facts
to -- this is the demurrer issue -- sufficient
facts to support a claim of discrimination based on
sexual orientation and/or national origin
discrimination?
So I think it makes sense, and this
is how I propose to proceed; for the Court to
resolve the legal issues and advise you of my
decision on the legal issues, and then turn to the
factual issues. So --
MR. BERG: Yes, sir.
THE COURT: -- with -- with that said,
the -- Mr. Berg, why don't you first address, from
the podium, does the Plaintiff have to exhaust all
administrative remedies under the VHRA before
filing a private right of action. I am fully
familiar with the decisions of Judge Tran, Judge
Alston, Judge Cullen, so -- Judge Smith. So I've --
MR. BERG: I -- I appreciate that, Your
--
THE COURT: Please -- please -- I mean,
I -- obviously -- yeah. You can tell from what
I've said so far that I've gotten deep into the
weeds of this case.
MR. BERG: You have.
THE COURT: Okay.
MR. BERG: All right. Well -- and thank
you, Your Honor. I -- I appreciate that --
THE COURT: And I'm going to deal with
these -- I'm going to deal with these just -- I'm
sorry to interrupt you, but --
MR. BERG: Not at all.
THE COURT: -- we have the time we need
because, as you can see, everything else is done on
my 10:00 a.m. docket. And I'm going to not have
you argue everything. I'm going to do one at a
time, and then have Ms. Jarvis make her argument --
MR. BERG: Okay. So I'll just focus on
--
THE COURT: -- on each -- on each issue.
MR. BERG: -- the first question for the
moment before turning it over to Ms. Jarvis, and so
on. That's fine. The -- the answer is -- the
short answer, because I think given all the paper
that has changed hands, brevity is important here.
The answer is, yes, Mr. Osman must, as a matter of
law under the Virginia Human Rights Act, exhaust
his administrative remedies before proceeding in
Court on -- and raising any claim under the
Virginia Human Rights Act. And --
THE COURT: And -- and that's the
position taken by Judge Cullen, Judge Alston, and
Judge Tran.
MR. BERG: It is.
THE COURT: The only decision that I'm
aware of at odds with that is Judge Smith's.
MR. BERG: The -- the Cooper Indus case,
Your -- yes. And -- and that --
THE COURT: The Cooper Indus case.
MR. BERG: Right. And -- and I think
that, with respect to Judge Smith, as Your Honor
has alluded to by the predicate here, I think that
the -- the weight of authority, the majority of --
the vast majority of the decisions on this have
found there is an exhaustion requirement. I think
the statute resolves any ambiguity on this itself.
And I focus on Sections 2.2-3907(a) and
2.2-3908(a), as well as Section 4520-50(a)(2) of
Title I of the Virginia Administrative Code and
Subsection 45-20-25(b) under Title I of the
Virginia Administrative Code, and my reasoning is
-- is as follows.
Title -- excuse me, Section 2.2-3908(a)
only gives the right for a civil action by a
private party to -- and this is quoting from
Subsection (a) -- An aggrieved person who has been
provided a notice of his right to file a civil
action pursuant to Subsection 2.2-3907. Now,
obviously, you cannot have and receive a right to
sue without filing a charge in the first instance,
and that is set forth in Subsection 2.2-3907(a).
THE COURT: Yeah. Essentially, I think
part of your argument, at least, is it wouldn't
really make sense to have a framework that involves
a right to sue if the individual didn't have to
exhaust administrative remedies first.
MR. BERG: Correct. Yes. The -- the
Virginia -- I don't think -- I -- I think --
although we're not taking testimony from Judge
Smith, I think even Judge Smith would agree that
the VHRA, as a statutory scheme, is modeled closely
off of Title VII. It's not identical in all
respects, although there are substantial
similarities there. And Title VII, as it's been
canon for now 60 years, requires a charge filing a
crime and -- and -- and a receipt of a notice of
right to sue.
And the reason for that is set forth
I think the Balas case from the 4th Circuit, that's
cited in our papers, lays that out quite
compellingly. It serves two purposes that are not
just to be rushed through as a formality to
proceeding in litigation. Those are namely, one,
notice to the employer or the person who's alleged
to have committed the discrimination or engaged in
the unlawful employment practice and, two, an
intent to encourage conciliation or informal
resolution by the parties so that it -- it can be
promptly investigated and, if need be, resolved to
the extent there is any --
THE COURT: All right. Let -- let me
hear from Ms. Jarvis on this. I'll let you know if
I need to hear further from you on this --
MR. BERG: Thank you, Your Honor.
THE COURT: -- on this first issue.
MS. JARVIS: Thank you, Your Honor. I
think I can make this one easy. I absolutely think
that all -- all remedies must be exhausted before
one can proceed with a right to sue under either
the VHRA or the EEOC.
THE COURT: Okay. So that resolves
that. All right. So the -- you have to exhaust
administrative remedies. As I said, we're going to
just deal with legal issues right now before I turn
to the factual issues. So the next issue, next
legal issue, can the complaint be brought against
corporate defendants not named in the charge and
right to sue letter? And so, why don't you address
that, this -- this -- what --
MR. BERG: Sure.
THE COURT: -- you could call the
substantial identity issue.
MR. BERG: I -- I guess that's now
subsumed within your question too, Your Honor,
about whether they've done so. Right. There's no
dispute that there -- that Mr. Osman has received
notice of right to sue, although I think it's
important, before I get to that question, just to
note that the notice of right to sue itself is
addressed to KG&P Strategies, Inc. period full
stop, and that's the Complaint Exhibit 1B and
Exhibit 3 to -- to Plaintiff's opposition. So that
-- that frames the discussion that follows with
respect to Your Honor's Question 3.
And the answer here is in -- in theory,
that can be done, but not on the facts as alleged
here that these defendants are not -- are not
sufficiently alleged to have any substantial
identity with KG&P Strategies, the only named
respondent in the charge. And the extent of the
allegations in this regard, really, are Paragraph 3
of the complaint, which is entirely conclusory,
Additional corporate defendant -- and I'm quoting
from Paragraph 3 of the complaint here. Quote,
Additional corporate defendant, KG&P Strategies,
Inc. is a Virginia corporation with a principal
office of 19775 Belmont Executive Plaza, Suite 400,
and so on. Then the next sentence, KG&P does
business in Virginia as evolve24, KACE, MVM, Inc.
and the Providencia Group.
The basis for that is lacking on
the four corners of the pleading, to the extent
that Ms. Jarvis has provided attachments from the
Virginia State Corporation Commission to her
opposition brief. They, at most, established the
unremarkable proposition that these entities shared
an officer and perhaps an office address. There's
been no effort to allege substantial identity among
the types of operations they have and, indeed,
evolve24, who is actually identified in the
complaint as Mr. Osman's employer, is based in
Missouri, in stark contrast to the KG&P, which is
based in Virginia.
We've also attached as exhibits to
our reply other filings of which the Court can take
judicial notice. I think there's no dispute as to
their authenticity here that confirms that there is
a -- a complete lack of -- of alias, if you will,
among these named defendants in the lawsuit.
THE COURT: You -- you have skipped into
-- not skipped, but you have moved into the facts.
I -- I -- I want to -- I -- I -- I want to -- I
want to reserve that issue and deal solely with the
legal issue as to whether or not you agree that a
complaint can be brought against the corporate
defendants who are not named in the charge and the
right to sue letter if substantial identity is
established. And the reason I'm posing that
question is the substantial identity case law deals
with Title VII; it doesn't -- that -- that I'm
aware of. Are -- is there -- is there VHRA case
law dealing with substantial identity?
MR. BERG: We have not found case law,
nor do we cite any in our papers, under the VHRA.
THE COURT: So -- so it's under Title
VII. So the -- the -- I -- I want to -- I want to
focus you on the pure legal issue.
MR. BERG: There is no blanket
prohibition against a principle of substantial
identity. I think it is, unfortunately, fact
specific. So I -- I'm sorry that I don't have a
bright line yes or no answer, other than to say the
substantial identity principle is one that is
founded under Title VII case law. It's a narrow
exception. Indeed, the primary case that Ms.
Jarvis cites found there was no substantial
identity in that case, but can it exist as an
academic matter? Yes, it can, Your Honor.
THE COURT: Okay. Well, that -- that --
that -- it would seem to me, given what you've just
said, I don't need to hear from you, Mr. -- Ms.
Jarvis because obviously you agree with that?
MS. JARVIS: Agreed.
THE COURT: Right. Okay. So, again,
concerning ourselves purely with the legal issues
initially, can the complaint be brought against the
individual defendants? In other words, is there
individual liability under the VHRA?
MR. BERG: That's a straight issue of
law, I agree, Your Honor, and the answer is no,
there is no individual liability under the VHRA.
THE COURT: Let me hear from Ms. Jarvis.
I'll let you know if I need to hear further.
MR. BERG: Thank you.
MS. JARVIS: Thank you, Your Honor.
Excuse me. I need my glasses. I think this one is
a long shot for my client, Your Honor, given what
the Western District has said on this issue.
THE COURT: You mean in -- in Saville?
MS. JARVIS: Yes, sir. Right. That's
-- that's exactly the case that I'm looking at.
THE COURT: Right. And that's the case
I'm looking at.
MS. JARVIS: Well -- well, awesome. So
what I really focused on in that case is -- and I
-- I -- I took some notes here. I'm looking at the
Westlaw version of it, Page 8, but it really goes
to the issue of defining an employer. And Judge
Urbanski has listed out the arguments, and what he
said here, let -- lends me to think that there was
some uncertainty in his position. Because he -- he
cites the -- the definition of an employer and he
-- they're teasing out this phrase, And any agent
of such person, which would allow us to go after
individual defendants. But he's going back and
he's backing it up to the definition that's set
forth in the VHRA, and he analyzes it a little bit,
and then he goes on to say -- and right now, Mr.
Berg, I'm quoting from Saville v. Northwestern.
It's right where it has the asterisk 9 next to it
on Page 8, so it should be fairly easy to find.
And I -- I thought Urbanski summarized
this pretty well. He said that Saville argues that
And any agents of such person language allows
individual managers and supervisors to be held
personally liable to the extent that they engage in
discriminatory conduct. And I'm skipping over the
citations to the particularities of his case. And
then, the judge goes on to say that the
interpretation -- this interpretation would
dramatically expand the scope of the VHRA. Corbin
and Benson, on the other hand, argue that the And
any agent of such person language provides context
for calculating how many persons are employed to
determine if a person qualifies as an employer.
And he goes on to say exactly what I think is the
-- the cusp of the matter. He says, while the
Court acknowledges some indeterminacy in this
definition, the Court believes that Corbin and
Benson have the cleaner reading of the statute; An
employer is an entity with 15 or more employees or
agents.
And Your Honor, it's a textual analysis
issue. When I proceeded and read through the
definition section, I certainly understand what
Urbanski's reasoning is, but I think that there is
a reasonable argument for interpreting employee/
employer and the context that it's often
interpreted in other scenarios, and it -- it just
simply is the -- an employer/employee agent type of
analysis. So that's where I'm coming from. I
absolutely do acknowledge that the Western District
has opined on the issue. The only thing that I saw
here was the indeterminacy language that the judge
used.
THE COURT: All right. Thank you.
MS. JARVIS: Thank you, Your Honor.
THE COURT: The Court finds that there
is not individual liability under the VHRA. The
case that the Court finds most helpful is Saville
v. Northwestern Regional Jail Authority in the
Western District of Virginia, January 8th, 2024. I
-- I -- the language, Or agents of such person, I
don't read that as providing of -- for individual
liability. Given, as Judge Urbanski says, what a
dramatic expansion it would be of the statute, if
the VHRA had intended to provide for individual
liability, it would -- I believe it would've said
so explicitly. So the Court's ruling is that there
is not individual liability under the VHRA.
MR. BERG: And Your Honor, just to
clarify the scope of that ruling then, does that --
I -- I think it necessarily follows, but just to
confirm my understanding, that means that all
claims against Amber Kodish, Rose Sommovigo, Noah
Howerton, Philip Scott Forbes, Carmen Campos, and
Crystal Wheeler are dismissed?
THE COURT: Dismissed with prejudice --
the --
MR. BERG: Thank you.
THE COURT: -- on the VHRA. Right. All
right. That brings us to -- can the -- can the
complaint raise charges of discrimination that were
not in the charge or the right to sue letter and --
all right. Go ahead.
MR. BERG: No. If Your Honor had other
portions of the question, I'm happy to -- to --
THE COURT: No. I mean, the -- the --
Judge Tran, in Parikh Chopra v. Strategic
Management Services, LLC, essentially makes the
point that that has to be raised in the charge --
MR. BERG: Yes.
THE COURT: -- and the right to sue
letter. And so, the key issue here is whether or
not the case can go forward on the national origin
discrimination, right?
MR. BERG: Correct; and the answer is
that, no, it cannot, Your Honor, for those reasons.
THE COURT: It can go forward on sexual
orientation, but not national origin
discrimination, because that was not raised in the
charge or the right to sue letter; is that correct?
MR. BERG: I -- I -- I have more to say
about the defendants against to whom a claim might
proceed, but correct as far as the theories.
That's -- I agree with Your Honor.
THE COURT: Okay. Let me hear from Ms.
Jarvis.
MS. JARVIS: Thank you, Mr. Berg. Thank
you, Your Honor. After reading the Defendant's
reply brief, I agree that anything that was
reported to the EEOC before, like, letters sent to
the EEOC and the EEOC's investigative report or
inquiry report that kind of takes the recorded
conversations, that cannot be part of -- of our
argument. But what can be part of the argument
that we submit to the Court is what is in the
charge letter and what could be reasonably inferred
from it if someone conducted a reasonable
investigation from what's presented in the charge.
And so, that brings up some factual
issues, and before I jump into those, I wanted to
make sure --
THE COURT: Well, yeah, let's reserve --
let's reserve ourselves to the legal issues, right,
the pure legal issue.
MS. JARVIS: Yes, sir.
THE COURT: Do you agree that -- well,
let me ask you whether you agree that the complaint
in this Court is limited to charges of
discrimination that were in the charge and the
right to sue letter?
MS. JARVIS: No, sir. I think that
there is additional language in a lot of the
decisions that says it -- that were limited to
what's in the charge letter and what could be
discovered from a reasonable investigation that is
initiated by the details that are contained in the
charge letter. For example -- and I'm not going to
go too far into the facts, but, like, in this
charge letter, you've got letters that are
referenced in here. So those letters should be
considered as part of the charge letter for the
purposes of both the defendants and the national
origin claim, because they're listed in the charge,
and somebody who receives it would have reasonable
notice of what matters are contained in those
letters.
THE COURT: Do -- do you have a hard
copy of that right to sue letter? Can I see --
MR. BERG: I do, Your Honor. Give me
one moment. Is this part of your exhibit?
THE COURT: All right. Go ahead, Ms.
Jarvis.
MS. JARVIS: Thank you, Your Honor. So
please stop me if you think I'm getting too much
into the -- into the weeds here. But, once again,
what I'm really coming to is the case Evans v.
Larchmont on Page 9 of that case, which talks about
the charge and what would instigate a reasonable
investigation of the items that are mentioned in
the complaint. And in the particulars section of
the charge, there are several emails and letters
and things that are referred to in -- in -- in the
particulars. Like, just for example, on September
22nd, 2022, I was hired by the above named
respondent in the position of Vice President of
Data Sciences, and it cites his hire date and any
-- so when this -- so when this charge from the
EEOC is sent over to KG&P, the named defendant,
they're going to have notice of who was hired by
who.
Like, for example, in Plaintiff's
Exhibit 2 to the complaint, we -- we see an offer
letter that's from evolve24 to the -- to -- to the
Plaintiff. And if you don't mind proceeding down
through the bill of particulars, it also refers to
a February 7th, 2023 incident where human resources
informed him of a complaint against him. Again,
any reasonable investigation of the complaint -- of
the -- of the charge would lead the legal
department or the team to look up who -- who the
human resources person was, and that is clearly
someone from evolve24 that's --
THE COURT: Can -- can -- can I see --
all of our files are electronic now. Do you have a
hard copy of the charge?
MR. BERG: Yes.
MS. JARVIS: Your Honor, I can stipulate
-- nevermind.
THE COURT: You can stipulate to what?
MS. JARVIS: Nothing.
THE COURT: All right.
MR. BERG: And just so the record is
clear, this is Exhibit A to R, demurrer and plea in
bar.
MS. JARVIS: Yes, sir.
MR. BERG: And I believe Ms. Jarvis also
attached a copy as Exhibit 2 to her opposition, but
they're the same document.
MS. JARVIS: Thank you, Mr. Berg.
THE COURT: Just give me a moment. I've
got the charge of discrimination letter. Do you
have the attachments? Were there attachments to it?
MR. BERG: There -- there were not with
the copy that my client received.
THE COURT: Okay. So when you refer to
attachments, what are you referring to?
MS. JARVIS: I'm referring to in the
particulars, which -- are you -- your Honor, are
you looking at the charge of discrimination itself?
THE COURT: Yeah, the three-page.
MS. JARVIS: Okay. So I'm looking at
the particulars, and what I'm saying is references
to dates and references to emails or complaints are
enough to put the respondent or respondents on
notice of who is being sued and what they are being
sued for.
THE COURT: But -- but the -- Page 2
says, I believe I was discriminated against on the
basis of my sexual orientation, gay, and retaliated
against for complaining. It -- so it's very --
it's very clear what he is claiming, and there's no
reference to national origin in -- in that.
MS. JARVIS: That's completely correct.
There -- there is no -- in the charge of
discrimination, Your Honor, there is no direct
reference to national origin. What I am arguing is
that there are letters and emails referenced within
the particulars that do speak to the issue of
national origin, and a reasonable investigation of
those under the Evans v. Larchmont test would be
more than enough to put either KG&P or evolve24 on
notice of not only who is being sued, but what
they're being sued for --
THE COURT: Well --
MS. JARVIS: -- or complained about.
THE COURT: But that gets to the -- the
Page 2, the -- if I understand, what you're saying
is that a reasonable investigation of the
documentation should have led to put them on notice
and -- and understanding on, under the VHRA, that
the -- your client was discriminated against on the
bases of national origin. But the complaint
itself, the -- the charge itself tells the VHRA and
tells the employer that this is what I was
discriminated against. In other words, it -- it
sounds like what you're saying is that a complaint
can be filed on any basis of discrimination
authorized by the statute if that might be inferred
from the investigation without regard to whether or
not it was claimed in -- on Page 2.
MS. JARVIS: I'm not going that far,
Your Honor. What I'm trying to apply is the test
that's laid out by the courts, which speaks to
what's described in the charge of discrimination.
And in a charge of discrimination, there's not a
whole lot of space to put down all the different
items. So if you put down, hey, look, I complained
in this letter to you, and if you look up the
letter, in that letter, there's a very clear
complaint about national origin, for example, then
that should be enough, again, Your Honor, to put
the defendant on notice of what they're being sued
for. That's the standard.
And I understand and completely don't
argue with what you're saying insofar as the word
national origin is not clearly written on the
charge of discrimination, but, in my opinion,
that's not the standard of review for the Court.
It's what is in the charge of discrimination,
including the bill of particulars, that would lead
to a reasonable investigation of what the charge
is. That's my position.
THE COURT: You know the -- the document
itself doesn't limit the -- your client to this
2-inch box. It says if additional paper is needed,
to attach it to extra sheets. So there's --
there's no page limitation that -- that -- I mean,
it -- the client -- your client is not forced to
put it in 8 point type so that it -- it can -- you
can get everything in there; he can attach
additional pages.
So the -- the concern the Court has
is the notice issue. The -- Mr. Osman is very
explicit in saying what his claim was, that he was
discriminated against on the base of sexual
orientation. He does not make reference, as you
agree, to national origin discrimination. And
under the framework of this, the statute isn't --
doesn't that tell the employer that this needs to
be the focus of what we're looking at here?
MS. JARVIS: It comes down to whether or
not what is in here would give them notice and the
-- yeah.
THE COURT: I -- I understand. Let me
hear from Mr. Berg on -- on what Ms. Jarvis has --
has -- has said.
MR. BERG: Thank you, Your Honor. I
have -- I have two primary points in -- in
rebuttal. One is we cited a wealth of case law
from the 4th Circuit, which is, you know,
unchallenged in -- in Ms. Jarvis's opposition
brief. I'm citing specifically to Chacko v.
Patuxent Institute, 429 F.3d 505 at 512 4th Circuit
2005, Sloop v. Memorial Mission Hospital, Inc.
198 F.3d 147 at 149 from the 4th Circuit in 1999,
and then Bryant v. Bell Atlantic Maryland, Inc.
288, F.3d 124 at 132 and 133 from the 4th Circuit
in 2002. Those stand for the proposition -- and
this is a direct quote from Page 11 of our opening
brief -- The plaintiff's claim generally will be
barred if his charge alleges discrimination on one
basis, such as race, and he introduces another
basis in formal litigation such as sex," and that's
a quote from the Chacko Court.
The Bryant Court also dismissed --
affirmed, I should say, the dismissal of color and
sex discrimination claims where the charge itself
only alleged race discrimination. Your -- Your
Honor is focused appropriately on -- on the
contents of the four corners of the charge and, to
your point, which is well taken, any attachments
that Mr. Osman did or did not attach, and according
to what our clients received, he did not attach any
such filing. And I think this language is -- is on
all fours with the circumstances of this case,
which, again, involves a statute that is largely
modeled after Title VII.
Mr. Oman's charge alleged discrimination
on the basis of sex, and it alleged retaliation by
KG&P Strategies. It did not allege national origin
discrimination by KG&P Strategies. It did not
allege national origin discrimination by any
entity. There's nothing -- in addition to Page
2 of the charge, I would also just reference, on
Page 1, right above the particulars that Ms. Jarvis
brought to the Court's attention, there's a field
that says, Discrimination based on, and it says,
Retaliation, sex. That form, just for the Court's
evocation, also allows a charging party and/or his
counsel to complete -- you know, basically check
boxes -- it's as simple as that -- and you can
check -- you can check race, you can check sex, you
can check national origin, you can check any other
basis, and he did not do that here according to the
charge that was filed, which he reviewed and
digitally signed on July 24th, 2023.
THE COURT: Is that on -- in the -- are
you talking about the right -- what -- what are you
--
MR. BERG: I'm talking about the -- the
--
THE COURT: Charge?
MR. BERG: -- charge one, yes. On Page
1, you -- we focused -- you -- Your Honor
appropriately quoted from Page 2 of the charge.
Page 1 of the charge, there's a -- basically a
field. On the right-hand column, it says, Dates
discrimination took place. On the left-hand of
that, it says, Discrimination based on, and then it
says, Retaliation, sex. Does Your Honor see that?
THE COURT: I see that.
MR. BERG: Yeah. So that further
informs, you know --
THE COURT: I see.
MR. BERG: I think that the -- basically,
the Court can look both to those fields, as the 4th
Circuit has repeatedly for decades, and to the
particulars and -- and conspicuously absent
anywhere from that is the reference to national
origin discrimination.
And the only other point I wanted to
make in rebuttal on this issue is that Ms. Jarvis
has cited to, basically, the -- the leniency
doctrine that because Mr. Oman is a lay person
that, somehow, deference should be given to him.
THE COURT: I know what you're going to
say. He was represented.
MR. BERG: Exactly. And he -- and so
that, you know, should he have wished to have
asserted a national origin discrimination claim, he
could have done so through his counsel, and that
was not what happened. Instead, it was a request
not to investigate any such claims or to assert
additional claims. It was a request for a right to
sue notice they -- as counsel -- or to be sent to
counsel for the respondent, singular, KG&P
Strategies.
THE COURT: Okay. Thank you. Ms.
Jarvis, is there anything else you want to say on
this issue that you haven't had a chance to say?
MS. JARVIS: One quick thing about the
box checking, which is correct, but I think it's
important to understand how that process goes down
-- or went down in this case. Like with many other
EEOC complainants, my client was on the phone with
one of the EEOC folks, and she was the one that had
the visual on the box checking, and that's one
point. As far as the lay person versus the
represented by counsel, Counsel was not involved in
this case until October, well after this charge was
initially filed. Now, ostensibly, Counsel could
have made a motion --
THE COURT: Amended the --
MS. JARVIS: -- amended the charge, and
that's --
THE COURT: And that's what I assume Mr.
Berg is referring to. I don't think he's -- I
mean, it's -- clearly, this is a pro se submission
--
MS. JARVIS: Yes. Yes.
THE COURT: -- but he's referring to the
fact that Counsel became involved at a time when
the charge could have been amended.
MS. JARVIS: Yeah. I think that's a
fair -- a fair point.
THE COURT: All right. Thank you. All
right. Well, I -- I find that the complaint is
limited to the charge of discrimination and --which
is sexual orientation. It's very explicitly stated
in both Page 1, retaliation, sex, and on Page 2,
sexual orientation, gay. And -- and so to the
extent that the complaint raises a complaint of
national origin discrimination, that portion of the
complaint is struck, or cannot go forward.
MR. BERG: I believe just to clarify,
that that would mean that Counts 2 and 4, the
national origin discrimination claims are -- are
dismissed with prejudice?
THE COURT: They're dismissed with
prejudice.
MR. BERG: Okay.
THE COURT: Well, let me just -- let me
just stop you on the with prejudice point.
MR. BERG: Yes.
THE COURT: Is Mr. Osman precluded from
filing a new charge based on national origin?
Because I -- I -- I don't know why he would be,
unless there's some statute of limitations that has
expired.
MR. BERG: Well -- and -- and that's
exactly it, Your Honor. I mean, the answer is, can
he -- or the question -- if the question is can he
file another charge, he can. Exactly as Your Honor
has posited, that charge would be time-barred at
this point. There's a 300 -- a, effectively,
statute of limitations, and given that Mr. Osman's
employment ended over a year ago -- or, excuse me
-- in -- according to his charge he challenged,
acts that last -- most recently occurred February
17th, 2023 we're well outside of 300 days of this.
THE COURT: Well, Ms. Jarvis, do you
agree that -- that -- see, I -- I don't want to
make a ruling on a statute of limitations that is
not before the Court. So if -- if you think
there's some statute of limitations argument that
would permit him to file a national origin claim at
this time, I will dismiss those counts without
prejudice and parties can litigate it. But if you
-- if there is no basis for such a further charge,
then I would dismiss it with prejudice.
MS. JARVIS: I disagree that it's
necessarily barred by the statute of limitations
due -- due to the relating back aspect of it.
THE COURT: Okay. Then -- then it's
dismissed without prejudice.
MS. JARVIS: Thank you, Your Honor.
THE COURT: Okay. All right. So the --
so let's see where we are now. I -- I ruled on the
exhausted administrative remedies, and he certainly
exhausted his administrative remedies with respect
to sexual orientation and -- and against KG&P and
any other entity that would meet the substantial
identity exception, which -- as the case law is
under Title VII, but, as Mr. Berg acknowledges, the
Court can consider that in determining whether that
would apply here as well.
I -- Mr. Berg, let me hear from you
on the factual issue. And I -- I can tell you at
the outset that I think you have an uphill fight
arguing that evolve24 and Sherpa, LLC would not be
included in -- and -- and Ms. Jarvis, am I correct
those would be the -- the -- would those be the
entities that you would --
MS. JARVIS: Yes.
THE COURT: Evolve24 and Sherpa? Not --
there's some other entities, KACE, TPG, MVM.
MS. JARVIS: I think it would be fair to
-- to go forward, assuming that evolve24 and Sherpa
would be the other ones, yes.
THE COURT: All right. So those are the
only ones you need to address. And --
MR. BERG: So just to clarify that point
before I turn to that argument, are -- are -- are
you saying -- I can ask the Court or I can ask Ms.
Jarvis directly. Are -- are we saying that the --
the claims against -- allegations against case
KACE, K-A-C-E, MVM, Inc., and the Providencia Group
that those would all be dismissed?
THE COURT: Well, let -- let me see if I
understand Ms. -- what Ms. Jarvis is saying is --
is -- I believe her position is that Sherpa and
evolve24 would fit into that category, but the
others would not, so those would be dismissed; is
that correct?
MS. JARVIS: You know, there's --
there's a -- there's a little bit, actually, of --
there's something on, I guess it's, KACE and MVM.
There were two entities that actually issued, like,
a W-2 and a 1095 to my client. And I know that's
an extremely factual issue, but I would -- I would
agree with kicking out the Providencia Group, TPG,
but MVM, KACE -- let me just make sure I've got the
right companies. Sorry, Your Honor. I've got
notes all over my -- so KACE Company issued a Form
1095-C to my client, and so I would request that we
consider KACE Company, as well as Sherpa, LLC and
evolve24.
THE COURT: But not MVM and TPG?
MS. JARVIS: Yes, sir. Yes, sir.
THE COURT: Okay. The MVM and TPG, Mr.
Berg, are out.
MR. BERG: Thank you, Your Honor. Thank
you, Ms. Jarvis. Okay.
THE COURT: So the -- the evolve and
Sherpa are the ones I said I thought you had an
uphill climb on. I -- I -- I knew -- I -- based on
the material I have, I knew very little about KACE,
which is why I did not include them.
MR. BERG: Right.
THE COURT: Ms. Jarvis is saying that
they issued a 1095. I -- I don't know what a 1095
is. What --
MS. JARVIS: Health insurance. It's for
health insurance, Your Honor.
THE COURT: Okay. The -- the -- so that
-- that is some evidence of KACE having a
connection to his employment. The -- the -- it's
-- it's a much different case with respect to
evolve and Sherpa where you've got employees,
Howerton, Sommovigo, Campos, Kodish, and Wheeler,
who worked at evolve24. I mean, -- I mean, this
substantial identity, I mean, even though they
can't be sued individually, given their employment,
get -- it -- it's -- it -- it seems impossible to
me that evolve24 and Sherpa would not know that
their conduct was at issue in this case, but --
MR. BERG: Well, respectfully, on that
last point, I -- I think -- you know, and this is
right -- taken out of the Carter case that I think
both parties have cited regarding the substantial
identity piece. There's been absolutely no
suggestion or evidence offered that evolve24 --
which I'll just use the shorthand. Sherpa, LLC
does business as -- as each -- evolve24 is -- is
the entity name, so evolve24. Did they receive
notice of the administrative charge? They did not.
Are they -- they alleged to have committed the
discrimination? Yes. Is KG&P -- and turning to
the complaint now, the facts, as Your Honor pointed
out, is KG&P alleged to have committed the unlawful
employment practices? No, it is not. Is KACE
alleged to have committed any unlawful employment
practices? No. These are entities that are -- I
think Your -- Your Honor's point is fair in terms
of the evolve24 being the identified employer. The
problem is Mr. Osman has not exhausted his remedies
as to evolve24, if he -- which --
THE COURT: Well, but not -- but he has
if I find substantial identity.
MR. BERG: If Your Honor finds
substantial identity. What did -- what did the
Carter case hold? This is Ms. -- Ms. Jarvis's best
authority on the substantial identity piece. It
rejected -- the Court's indulgence here; one
moment. All right. So I -- I want to draw the
Court's attention to Carter v. Dominion Energy,
529 F. Supp. 3d 525, and I'm focused on Page 546
of that Court's decision.
THE COURT: That's exactly what I've got.
MR. BERG: Yes.
THE COURT: I've got the -- the four
factors.
MR. BERG: Right. And then, how does
the Court resolve it, apply those four factors to
the facts of the case involving Mr. Carter?
THE COURT: Well, may you help -- let --
let me hear from Ms. Jarvis on those four factors,
and then I'll hear from you further.
MR. BERG: Okay.
THE COURT: Ms. Jarvis? I mean, I -- I
-- I -- I agree that those four factors is what I
should be looking at under Carter.
MS. JARVIS: Let's start with who had
control to fire and hire. Is that where we're
going to start?
THE COURT: Go ahead.
MS. JARVIS: Amber Kodish is the CEO of
evolve, and she's noted -- court's indulgence; I'm
going to grab the charge of discrimination. Amber
Kodish is noted in the charge of discrimination and
the particulars, On February 17th, 2023, I was
terminated in a meeting with Amber Kodish and
Crystal Wheeler, profiling to include Mr. Howerton,
in a company-wide email after he was assigned to
another supervisor. So that is the power to fire.
The power to hire is discussed in the charge of
discrimination: September 27th, 2022, I was hired
by the above named respondent in the position of VP
of Data Science. And that very much is a
substantial identity because he is stating that he
was hired by KG&P, who is the parent company in his
-- in his mind, when he filed the lawsuit and was
hired by the company to work for them.
So throughout all of this, it -- it's --
it's very interesting. In the termination email --
and that is mentioned -- in the termination email
that my client received, the CEO of KG&P was copied
in that, Mr. Marquez. So then, there's some other
issues that the Court needs to consider as far as,
like, who pays salary. Obviously on the W-2,
Sherpa, LLC/evolve24 is listed on there. It's
actually just Sherpa that's listed, but if you look
at the Virginia State Corporation Commission, it --
it actually says on there -- identifies Sherpa,
LLC, evolve24. They're listed together.
The -- once again, the hiring control,
the (indiscernible) letter is from evolve24. And
in the charge of discrimination, I don't think it
could be that much more clear, unless evolve24 was
actually written in the box next to KP&G
Strategies, that evolve24 is directly involved.
There's six different employees or managers of
evolve24 that are listed in the particulars. So I
think it's a fairly clear --
THE COURT: All right. Let -- let me
hear -- I said, Mr. Berg, I'd hear from you again
on this.
MR. BERG: Thank you, Your Honor. And I
-- maybe I'm confused, but I thought that we were
talking about the four factors here that are cited
in Carter v. Dominion Energy, and those are
whether --
THE COURT: Well, we -- we were, but I
think Ms. Jarvis made a general argument.
MR. BERG: Okay. Fair enough. And I --
I don't mean to cast any aspersions on Ms. Jarvis
personally. So just turning back to the point I
was going to make before Your Honor heard from Ms.
Jarvis, the four factors here, whether there are
similar interests between the named and unnamed
parties; two, the ability of the plaintiff to
ascertain the unnamed party at the time of the
administrative charge; three, whether the unnamed
party had notice of the administrative charge; and
four, prejudice to the unnamed party.
And applying those factors here, the
Carter Court said -- rejected the substantial
identity theory. It said that -- and I'm quoting
here -- Plaintiffs have not alleged sufficient
facts to draw reasonable inference that Frenzelit,
the dismissed defendant, is substantially identical
to Dominion. Plaintiffs knew the identity of
Frenzelit prior to filing the charge. They even
mentioned Frenzelit in their attachment to the
charge, but did not name them as an employer in
their filing. Further, Frenzelit is a distinct and
separate entity from Dominion. The amended
complaint does not allege that the two companies
have similar interests, involve the same types of
business, are the same size or are run by the same
individuals, because they were not named in the
complaint. The agency there, which was OFCCP, as
opposed to the EEOC or the Virginia Office of Civil
Rights, did not contact Frenzelit, and they were
not involved in the administrative process. Thus,
Plaintiffs have not alleged facts showing
substantial identity between Dominion and Frenzelit.
How does that apply here? The same
general outcome, I think, is dictated by the facts
that we have in this case, and that is, clearly, as
Ms. Jarvis just explained, Mr. Osman knew evolve24
prior to filing the charge. He just -- as you just
heard, he cited, apparently, several employees of
evolve24. He received an offer letter, which is
integral to the complaint, which says that, On
behalf of evolve24, I'm pleased to extend our offer
of employment to you. He alleges as much in the
complaint.
Paragraph 17 of the complaint, Osman,
hired as the vice president at evolve24, began
working for Defendant, evolve24, citing to the
offer letter. He knew all of this prior to his
filing his charge. And, to Ms. Jarvis's point, he
could have named them, evolve24, in the charge,
same as he could have added attachments to the
charge, same as his counsel could have amended the
charge. Did any of that happen? It did not.
Were there factual allegations here
that show that the companies are the same or
substantially similar? Not enough to -- to
counterbalance the other factors. And I base that
on, again, we have a conclusory allegation in
Paragraph 3 of the complaint. We have filings from
the Virginia State Corporation Commission, and I'm
referring here to Exhibits E -- excuse me -- B
through E of our reply that show that there --
these are, in fact, different entities.
And -- and the fact that Corporate
Defendant, Sherpa, LLC, d/b/a, evolve24, is listed
in its own paragraph with located in Missouri, in
contrast to KG&P, which is in Virginia and which
did not receive notice from -- was not involved in
the administrative process -- just like Frenzelit,
right? It was not because, as we've seen -- not to
belabor the point -- we -- Your Honor took a look
at the right to sue notice. That right to sue
notice was sent to KG&P Strategies. So the fact
that evolve24 is now named in the complaint is fine
and well, but his -- it glosses over his
shortcomings prior to following the administrative
exhaustion requirements of the VHRA before
proceeding -- trying to proceed now against
evolve24.
I -- I don't think there's been a
showing of substantial identity on the facts of
this case. Ms. -- excuse me, Ms. Jarvis has not
cited any case law that has found substantial
identity in circumstances similar to these. And
so, we would ask that evolve24 be dismissed and
that this case be dismissed.
THE COURT: I just stayed there. I
disagree with you. I think there's sufficient
substantial identity with evolve and Sherpa. I --
I don't think there's substantial identity
established with respect to the other entities,
including KACE. I mean, I understand what Ms.
Jarvis has said about the 1095, but evolve and
Sherpa, I think, are in a different category. So
that's the Court's ruling. So that -- that leaves
just one issue, which is the demurrer and whether
or not there is sufficient facts to support a claim
of discrimination based on sexual orientation. Do
you want to be heard on that?
MR. BERG: I do. And -- and I -- I
understand Your Honor's ruling on the parties. My
argument here, primarily, is that the claim should
-- against KG&P, setting aside evolve24, based on
Your Honor's ruling, KG&P should be dismissed
because there is no allegation that anybody at KG&P
actually engaged in any unlawful employment
practice. These allegations, according to, you
know -- Section 2.2-3908 of the Virginia Human
Rights Act, says that an individual may sue an
employer for unlawful employment practice as well.
Mr. Osman's employer, singular, as alleged on the
facts of his pleading, is that evolve24, and not
any other entity, was his employer. He was hired,
again, as I said, at evolve24. His offer letter
says as much, the other exhibits to his complaint
say as much, and there's been no showing -- I -- we
can just walk through the --
THE COURT: So let me see if I
understand your position. Are you saying that you
are not challenging -- well, I'm -- I'm -- I'm
going to put words in your mouth just for you to
tell me whether or not this is in fact --
MR. BERG: Sure.
THE COURT: -- your position. With
respect to -- given the Court's ruling with respect
to evolve and Sherpa, you are not challenging the
sufficiency of the claim of sexual orientation
discrimination, but you are challenging that with
respect to KP&G; is that correct?
MR. BERG: Yeah. That -- that -- that's
correct, Your Honor. Right. Our position, based
on Your Honor's ruling, is that all claims other
than Mr. Osman's sexual orientation discrimination
against evolve -- excuse me -- Sherpa, LLC, d/b/a,
evolve24, should be dismissed and, as relevant
here, that all claims against KG&P should be
dismissed.
THE COURT: All right. Let me hear from
Ms. Jarvis on -- so I don't need to hear from you
as to whether it's sufficient against evolve and
Sherpa, because I've made that ruling. So the only
issue that you need to address, Ms. Jarvis, is
whether KP&G should stay in the case.
MS. JARVIS: I think that KP&G stays in
the case because there are allegations that they
are an employer with substantial identity, as we've
just gone over with evolve24 and Sherpa.
THE COURT: That's all I need to hear.
I mean, I -- I -- I -- I agree with you. And --
and so, they're staying in the case. So I made a
lot of rulings, and I think the best way to proceed
is rather than you doing a sketch order here in
Court, if you could file, a week -- within a week
from today, an order from today's hearing that both
of you have signed and noted all your -- whatever
objections you have, I think that would be the best
way to proceed. And just submit it to the Court.
You don't need to appear again; just submit it to
the Court, okay, a week from now. Thank you.
MR. BERG: Thank you, Your Honor.
MS. JARVIS: Thank you.
THE COURT: All right. That completes
our 10:00 a.m. docket. We'll be back in 15 minutes.
(Off the record at 11:24 a.m.)

CERTIFICATE OF COURT REPORTER - NOTARY PUBLIC
I, Lee Utterback-Pair, the officer before
whom the foregoing proceedings were taken, do hereby
certify that any witness(es) in the foregoing
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were recorded by me and thereafter reduced to
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said digital audio recording of said proceedings
are a true and accurate record to the best of my
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neither counsel for, related to, nor employed by
any of the parties to this case and have no
interest, financial or otherwise, in its outcome.
Notary Registration No.: 7796769
My Commission Expires: 8/31/2026
_________________________________
LEE UTTERBACK-PAIR, NOTARY PUBLIC
FOR THE STATE OF COMMONWEALTH OF VIRGINIA
May 22, 2024

CERTIFICATE OF TRANSCRIBER
I, Karen M. Galvez, do hereby certify
that this transcript was prepared from the digital
audio recording of the foregoing proceeding; that
said proceedings were reduced to typewriting under
my supervision; that said transcript is a true and
accurate record of the proceedings to the best of
my knowledge, skills, and ability; and that I am
neither counsel for, related to, nor employed by
any of the parties to the case and have no
interest, financial or otherwise, in its outcome.
_____________________________
KAREN M. GALVEZ
PLANET DEPOS, LLC
May 22, 2024