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Jones v. Kroger Ltd. Partnership I

United States District Court, W.D. Virginia, Roanoke Division

January 12, 2015


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For Marketia Jones, Plaintiff: Patrick Michael McGraw, LEAD ATTORNEY, MCGRAW LAW, P.C., ROANOKE, VA.

For Kroger Limited Partnership I, Defendant: Christopher S. Griesmeyer, LEAD ATTORNEY, Greiman Rome & Griesmeyer, LLC, Chicago, IL.

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Hon. Glen E. Conrad, Chief United States District Judge.

This case arises from harassment that Plaintiff Marketia Jones allegedly experienced while employed at a Kroger store in Franklin County, Virginia. The case is presently before the court on a motion to dismiss filed by Defendants Kroger Limited Partnership I (" Kroger" ) and Jim Townsend (" Townsend" ) (collectively, " the defendants" ). For the following reasons, that motion will be granted in part and denied in part.

Factual and Procedural Background

The following facts, taken from Jones's complaint, are accepted as true at this stage in the proceedings. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); see also Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011).

Jones began working for Kroger as a cashier in September 2012, when she was sixteen years old. Compl. ¶ 5, Notice of Removal Ex. A, Docket No. 1-1. Townsend was employed as the general manager of the Kroger location where Jones worked. Id. at ¶ 15. Jones alleges that while employed there, she was sexually harassed by another Kroger employee, Trevor Gammon. Gammon was " verbally vulgar, offensive, and sexually suggestive and demanding" toward Jones and other female Kroger employees. Id. at ¶ 7. Jones contends that Gammon " would insist on being [her] bagger," and would then " continuously harass[] [her] while she was performing her legitimate employment duties as a cashier." Id. at ¶ 9. Gammon's verbal harassment was accompanied by " constant unwelcome a sexual manner, including [touching Jones's] lower back and buttocks area, and on her sides above and onto her upper hips." Id. at ¶ 12. Jones specifically alleges that Gammon assaulted her on September 18, 2012 by " repeatedly caus[ing] his body to come into contact with [hers] in a sexual manner, intending to create or simulate sexual contact or acts." Id. at ¶ 6.

Jones submitted formal written complaints about Gammon's behavior to Kroger, consistent with its sexual harassment policies. Id. at ¶ 13. Jones and her parents also " had numerous meetings with [Kroger] representatives concerning [Gammon's] actions and [her] formal complaints." Id. at ¶ 15. Kroger " acknowledge[d] that all of [her] complaints were 'at least in part substantiated,'" and that it had received " no less than '[seven] different

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statements from different women'" about Gammon's harassment; they nonetheless told Jones that their " hands were tied" and they " weren't sure" whether anything could be done to stop the harassment. Id. at ¶ 16. Gammon remained employed by Kroger, and Jones and Gammon continued to work the same shifts. Id. at ¶ 17.

Jones filed a complaint with the Equal Employment Opportunity Commission (" EEOC" ) on October 26, 2012. Id. at ¶ 18. Kroger then began to retaliate against her by singling her out for " less desirable duties" and " continuously verbally reprimand[ing] her." Id. at ¶ 19, 23. For example, Jones " was forced to sweep and scrub floors, clean the break room, [perform] 'trash duty,' the 'parking lot' late at night, alone, despite her repeated complaints to [d]efendants...that such...duty...caused her to reasonably fear for her safety." Id. On March 30, 2013, Jones told a Kroger employee that parking lot duty made her fearful. That employee summoned Townsend, who

then assaulted [Jones] by yelling at [her] within inches of her face,...while repeatedly 'bumping' his chest against [Jones] in a threatening...way...scream[ing] loudly: " the situation with Trevor [Gammon] is over!" and " You don't work for your parents, you work for me and if someone tells you what to do you will do it or you will lose your job!"

Id. at ¶ 21.

On April 29, 2013, Jones's shift supervisor demanded that she produce a doctor's note to justify a previous absence. Id. at ¶ 25. When Jones was unable to do so, the supervisor " summarily dismissed [her] [from the shift] without further explanation or reason." Id. On May 1, 2013, Jones and her parents went to the store to discuss these ongoing problems. Id. at ¶ 27. They spoke with an assistant manager, who told them that he would relay their concerns to Townsend. Id. On May 3, 2013, however, Jones's father was instead served with a " no trespassing" notice issued by Townsend, which " falsely alleg[ed] that [he] had been 'disruptive and/or damaging' to Kroger business." Id. Jones ultimately resigned as a result of this hostile work environment. Id. at ¶ 26.

Jones filed this action in Franklin County Circuit Court on July 1, 2014, asserting claims of negligence, sexual harassment, retaliation, and assault and battery. She seeks $1,000,000 in compensatory damages and $1,000,000 in punitive damages. The defendants removed the case to this court on August 1, 2014. On September 5, 2014, the defendants moved to dismiss portions of the complaint under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held a hearing on the motion on October 14, 2014. Following the hearing, both parties submitted additional briefs, which the court has reviewed. The motion is now ripe for decision.

Standards of Review

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the plaintiff's complaint, which must contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a); see Presley v. City of Charlottesville,464 F.3d 480, 483 (4th Cir. 2006). When considering a motion to dismiss, the court must accept the well-pled facts in the complaint as true and make all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The court, however, is " not so bound by the plaintiff's legal conclusions." R ...

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