United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon, United States District Judge
In this employment discrimination case, plaintiff Julia Bennett, who was employed by defendant Fastenal Company for about four months, alleges that she was sexually harassed by defendant Philip J. Buttery, her supervisor, and that he eventually terminated her after she rejected his advances. Her complaint alleges sex discrimination and harassment claims against Fastenal pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and common law claims of assault and battery against Fastenal and Buttery. (Compl., Dkt. No. 1.) Pending before the court is Buttery’s motion to dismiss, in which he seeks dismissal of the only count of the complaint in which he is named, Count Two, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Buttery asserts two grounds for dismissal. (Mot. to Dismiss 1, Dkt. No. 6.) First, he contends that he should be dismissed “because there is no subject matter jurisdiction for non-diverse parties in a Virginia Common Law Action” and because Bennett has not pleaded supplemental jurisdiction as a basis for jurisdiction. (Id.; see also Mem. in Support of Mot. to Dismiss 3, Dkt. No. 7 (explaining same).) He argues that there is an “insufficient common nexus between [p]laintiff’s Title VII claim” and the assault and battery claims against him to establish supplemental jurisdiction, even if it had been pleaded. (Mot. to Dismiss 1.) Second, he claims that the Virginia Worker’s Compensation Act bars the claims for assault and battery. (Id.)
Bennett has filed a response in opposition (Dkt. No. 9), and Buttery has filed a reply (Dkt. No. 14). No party has requested a hearing, and the court finds that none is needed. Fed.R.Civ.P. 78(b); W.D. Va. Civ. R. 11(b). For the reasons set forth below, the court will deny the motion to dismiss.
The facts are based on Bennett’s complaint, and the court accepts the well-pleaded, nonconclusory factual allegations in the complaint as true when ruling on a motion to dismiss. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
Bennett was a senior in college when she began an internship with Fastenal in August 2014. During the course of her internship, Buttery made inappropriate sexual comments about and to Bennett, and also touched her inappropriately. (Compl. ¶¶ 10-11, 13.) For example, immediately after Bennett interviewed with Buttery, and throughout her employment, he made comments to other Fastenal employees about her breasts. (Id. at ¶ 14.) On one occasion when Bennett had to ride in a truck with Buttery, he made repeated comments that made her uncomfortable, including asking questions about her boyfriend, whether she was “really naughty” as a teenager, asking about her love life, and asking about her religious and political beliefs. (Id. at ¶ 15.) During the drive, he kept staring at her breasts and thighs instead of her face or the road. (Id.)
On another occasion, he asked her about whether she ever had certain body parts waxed. (Id. at ¶ 19.) He also asked about her relationship with her boyfriend, saying that he thought her boyfriend was “a creep” and that she was pretty and “could do much better than her boyfriend.” (Id.)
Buttery also was volatile and physically threatening on occasion. For example, on or about November 3, 2014, he and Bennett were working and talking and he said something like, “So now you are talking back to your boss. If I was my dad I would knock your teeth out and have you picking them up off the floor.” Bennett responded with something like, “Oh my God.” And Buttery said, “I would knock your teeth out and have you picking them up off the floor for saying the Lord’s name in vain.” (Id. ¶ 16.) On almost a daily basis, if Bennett did not respond to Buttery’s comments about her appearance, he would call her “scatterbrained, ” “dumb, ” or “hardheaded.” (Id. ¶ 17.)
Several times a day, Buttery would also grab his crotch and stare at Bennett and other women, which made Bennett “terribly uncomfortable.” (Id. ¶ 18.) Other female employees referred to him as “jock itch” as a result of this conduct. He also sometimes jiggled his private parts and stared at Bennett. (Id.)
Buttery also touched Bennett inappropriately. On one occasion, on or about December 3, 2014, Bennett was heating some food when Buttery approached her from behind and rubbed her back and shoulders. He also pressed his crotch against her buttocks and breathed down her neck. (Id. ¶ 21.) After Bennett pulled away quickly and walked out of the office, Buttery ignored her the rest of the day and “treated [her] coldly.” (Id.)
A couple of days after that incident, Buttery told Bennett that she was on a probationary period because she had mislabeled some parts, although another employee told him that she, and not Bennett, was responsible. Approximately one week later, Buttery fired Bennett. (Id. ¶¶ 23- 25.)
In the period Bennett was on probation, she alleges that “the more [she] rejected Buttery’s advances, the more he retaliated and yelled and screamed” at her. (Id. at ¶ 24.) On one such occasion, he was yelling within inches of her face and spat on her as he screamed. (Id.)
Several months after she was terminated, Bennett received a call from Fastenal’s human resources department and was told that Buttery had been terminated after he was caught harassing other employees. The same representative told Bennett the company had “done an investigation and founded [her] ...