United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
GERALD BRUCE LEE, District Judge.
THIS MATTER is before the Court on Defendants Fairfax Trucking, Inc. ("Fairfax") and Marc Nelson's ("Mr. Nelson") (collectively "Defendants") Motion to Partially Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) ("Motion to Dismiss") (Doc. 7). This case concerns allegations that Plaintiff Monica Matthews ("Plaintiff') was sexually harassed while working at Fairfax. There are five issues before the Court. The first issue is whether the Court should dismiss Plaintiffs Title VII sexual harassment claim against Mr. Nelson. The second issue is whether the Court should dismiss Plaintiffs assault claim against Mr. Nelson. The third issue is whether the Court should dismiss Plaintiffs negligent hiring claim against Mr. Nelson. The fourth issue is whether the Court should dismiss Plaintiffs negligent hiring claim against Fairfax. The fifth issue is whether the Court should dismiss Plaintiff's assault claim against Fairfax.
The Court GRANTS Defendants' Motion to Dismiss for five reasons. First, the Court GRANTS Defendants' Motion to Dismiss the Title VII sexual harassment claim against Mr. Nelson because (1) Plaintiff did not exhaust her administrative remedies by failing to name Mr. Nelson as a respondent in her EEOC charge, (2) Mr. Nelson is not an official under Title VII, and (3) Mr. Nelson cannot be held liable as he is not an employer under Title VII. Second, the Court GRANTS Defendants' Motion to Dismiss Plaintiffs assault claim against Mr. Nelson because he cannot be held liable for assault through the doctrine of respondeat superior.
Third, the Court GRANTS Defendants' Motion to Dismiss Plaintiffs negligent hiring claim against Mr. Nelson because Virginia law only recognizers employers-not supervisors or managers-as the proper subjects of negligent hiring claims. Fourth, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's negligent hiring claim against Fairfax because Plaintiff failed to plead sufficient facts showing that her coworkers' pre-employment behavior should have alerted Fairfax that those coworkers would assault Plaintiff. Fifth, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's assault claim against Fairfax as Plaintiff failed to plead sufficient facts showing that the coworkers who allegedly assaulted her were acting within the scope of their employment.
Plaintiff Monica Matthews is a truck driver for Fairfax. (Doc. 1 ¶ 2; Doc. 8 at 1.) Defendant Marc Nelson directly supervised Plaintiff during the times of the incidents complained of and also supervised the individuals who allegedly engaged in wrongful conduct. (Doc. 1 ¶ 4.) Plaintiff claims that in 2005 a coworker named Anatoli Petrigov ("Mr. Petrigov") squeezed her breast while she was at the work site. ( Id. ¶ 5.) Plaintiff immediately reported this Mr. Nelson, who reportedly laughed and said that he would speak with Mr. Petrigov about the incident. ( Id. ) She claims that in January 2013, Mr. Petrigov approached her and touched her hair and face." ( Id. ) This incident was also reported to Mr. Nelson. ( Id. )
In May 2013, Fairfax employee Carl Jenkins ("Mr. Jenkins") allegedly placed his hand around Plaintiffs waist and asked that she go away with him for a weekend. ( Id. ) After she declined, he began to rub her neck. ( Id. ) She reported this incident to Mr. Nelson. On May 21, 2014, Mr. Petrigov allegedly touched Plaintiff's thigh. ( Id. ) Plaintiff also alleges that two additional incidents happened in May 2014. First, Plaintiff claims that Mr. Jenkins "stuck his hand in the front of Plaintiff's pocket near her vaginal area." ( Id. ) She asked him to stop as this made her uncomfortable. ( Id. ) Plaintiff reported the incident to Mr. Nelson and requested that he stop sending her out on jobs with Mr. Jenkins because she was afraid of him. ( Id. ) Plaintiff is unaware whether Mr. Nelson followed up on her complaint against Mr. Jenkins. Second, Plaintiff claims that a coworker named Marvin sexually harassed her. While sharing a fish sandwich for lunch at a worksite, Marvin told Plaintiff that "he was interested in accompanying her to her home so that he could share that other fish.'" ( Id. ) Plaintiff reported this to Mr. Nelson, who advised her to inform him of any further sexual harassment. ( Id. )
The EEOC issued a right to sue letter on June 18th, 2014. On September 16, 2014, Plaintiff filed her Complaint (Doc. 1).
A. Standards of Review
a. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal where the court lacks jurisdiction over the subject matter of the action. FED. R. CR, . P. 12(b)(1). Where a federal court finds subject matter jurisdiction lacking, it must dismiss the case. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 301 (4th Cir. 2009) ( citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)). In considering a 12(b)(1) motion to dismiss, the plaintiff bears the burden to prove that federal subject matter jurisdiction is proper. Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 371 (4th Cir. 2012) (citing U.S. ex. rel . Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009)).
There are two ways in which a defendant may present a 12(b)(1) motion. First, a defendant may present a facial attack upon the complaint where the complaint "fails to allege facts upon which subject matter jurisdiction may be based." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). In such a case, the court assumes the truth of all facts alleged by the plaintiff. Id. (quoting Bain, 697 F.2d at 1219).
Alternatively, a defendant may use a 12(b)(1) motion to attack the existence of subject matter jurisdiction apart from the pleadings, essentially averring "that the jurisdictional allegations [are] not true." Id. (quoting Bain, 697 F.2d at 1219). When faced with this second form of a challenge, the court may regard the pleadings as mere evidence and consider evidence outside the pleadings to determine the existence of jurisdiction, even going so far as to hold an evidentiary hearing if deemed necessary. Id. (citing Bain, 697 F.2d at 1219); Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004). As a result, plaintiff's allegations find no presumption of truth, and a dispute of ...