United States District Court, W.D. Virginia
December 16, 2016
Helen L. Cobbs, Plaintiff,
First Transit Company, ET AL., Defendants.
K. MOON, UNITED STATES DISTRICT JUDGE
K. Moon On April 1, 2016, Helen L. Cobbs
(“Plaintiff”) filed an amended complaint against
First Transit, Inc., Central Virginia Transit Management Co.,
Inc. (“CVT”), Greater Lynchburg Transit Co.
(“GLTC”), Dennis Dorsey, Kevin Lacy, Alan Robey,
Gloria Berkley, and Karen Walton alleging hostile work
environment sexual harassment (“Count I”),
quid pro quo discrimination (“Count
II”), and retaliation (“Count III”) by all
defendants-as well as intentional infliction of emotional
distress (“Count IV”) and assault (“Count
V”) by Dorsey. (Dkt. 5). Lacy, Robey, Berkley, and
Walton were dismissed from the suit on the ground that
supervisors are not liable in their individual capacities for
Title VII violations, (dkt. 21), leaving First Transit, CVT,
GLTC, and Dorsey (“Defendants”) as parties to the
matter is before the Court on Defendants' motions to
dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1)
and 12(b)(6), for lack of jurisdiction and/or failure to
state a claim. (Dkts. 15, 18, 31). The motions by First
Transit, CVT, and GLTC will be denied because Plaintiff has
adequately pled Title VII violations, while Dorsey's
motion will be granted, and the claims against him will be
dismissed because he cannot be sued under Title VII, the
assault claim is time barred, and the intentional infliction
of emotion distress claim lacks sufficient allegations.
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
legal sufficiency of a complaint to determine whether the
plaintiff has properly stated a claim; “it does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of North Carolina v. Martin, 980
F.2d 943, 952 (4th Cir. 1992). Although a complaint
“does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds'
of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations
need not “accept the legal conclusions drawn from the
facts” or “accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Eastern
Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213
F.3d 175, 180 (4th Cir. 2000). “Factual allegations
must be enough to raise a right to relief above the
speculative level, ” Twombly, 550 U.S. at 555,
with all allegations in the complaint taken as true and all
reasonable inferences drawn in the plaintiff's favor.
Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346
(4th Cir. 2005). Rule 12(b)(6) does “not require
heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. Consequently,
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
Facts as Alleged
about November 28, 2011, Helen Cobbs was hired by CVT or GLTC
as a bus operator. (Dkt 5 ¶ 13). In December 2013, Cobbs
was injured in a work-related accident and restricted to
light duty employment. (Id. ¶¶ 14-15).
During this light duty employment, Dennis Dorsey, who was
employed by either First Transit or CVT, was her supervisor.
(Id. ¶¶ 8, 16).
the next few months, Dorsey began commenting on Cobbs
appearance, sending her cards, sending her text messages, and
making other unwelcome advances. (Id. ¶¶
18-25). Cobbs told Dorsey that these unwelcome advances and
comments were “putting her in a bad position” as
she was often secluded in his office alone with him.
(Id. ¶ 26). Dorsey would also require Cobbs to
accompany him when he left the office to run errands.
(Id. ¶ 28). During one these trips, Dorsey
placed his hand on her knee and smiled. (Id.
¶¶ 29-30). Again, Cobbs continued to plead
with Dorsey to stop these advances, but to no avail.
(Id. ¶¶ 33-34).
told Cobbs “she could ‘have it anyway
[sic] she wanted, ' and threatened that he could
‘fix it where there wouldn't be any light duty work
available for her' and she could just ‘stay home
and get partial pay.'” (Id. ¶ 32).
The unwanted sexual advances continued, and when Cobbs would
not respond, Dorsey told her there was no more light duty
work and she had to take time off. (Id. ¶¶
37-38). However, the text messages from Dorsey continued, in
which he asked her to “come on over” and
“ride to MD” with him. (Id. ¶¶
returned to work with the assignment of answering phone
calls. (Id. ¶ 42). The advances and text
messages continued. (Id. ¶¶ 43-56). Once
again, Cobbs told Dorsey she was uncomfortable with his
communication and requested that she be assigned to work
elsewhere within the company. (Id. ¶ 56.) After
this meeting, Cobbs spoke with union steward, Chuck Hudson,
about the unwanted advances from Dorsey. (Id. ¶
58). She also reported the incident to Karen Walton, the
general manager, and Gloria Berkley, who works in human
resources at First Transit or CVT. (Id. ¶¶
about May 2, 2014, Cobbs met with Walton and showed her some
of the text messages. (Id. ¶ 60). Walton stated
that the text messages were not “that bad.”
(Id. ¶ 61). Berkley also failed to correct the
problem, stating that she had no control over who likes whom.
(Id. ¶ 62). After the meetings with Walton and
Berkley, Cobbs submitted a written complaint to Berkley.
(Id. ¶ 63). On or about May 5, 2014, Berkley
informed Cobbs that she would conduct an investigation.
(Id. ¶ 65). When Cobbs returned to her mailbox,
she had received a letter that she, along with other
employees, was being placed on furlough starting May 10,
2014. (Id. ¶ 66).
few weeks on furlough, Gloria Berkley called Thomas Coles to
inform him that a position had opened up, but he declined.
(Id. ¶ 67). According to company policy, Cobbs
should have been the next person contacted about the open
position, considering her seniority, but she was not called.
(Id. ¶ 68). In August 2014, Cobbs finally
returned from furlough. (Id. ¶ 69).
orientation for her return, Kevin Lacy, who was employed by
First Transit or CVT, stated that the company was not going
to deal with “some of the mess that people were saying
before the furlough.” (Id. ¶¶ 9,
70). Cobbs began to recognize that her co-workers would make
negative comments when she passed and she was constantly
disciplined and given written disciplinary letters.
(Id. ¶¶ 71-78).
about September 30, 2014, Cobbs filed a Greivance Form, in
which she requested a hearing related to a disciplinary
letter she had received and alleged that she was being
targeted by Dorsey. (Id. ¶ 81). Cobbs then
filed an EEOC Discrimination charge against CVT.
(Id. ¶ 83). On or about December 31, 2015,
Cobbs received a Notice of Right to sue from the EEOC.
(Id. ¶ 89).
sought mental health treatment due to these events beginning
in October 2014. (Id. ¶ 82). Dr. George W.
Luedke, a psychiatrist, diagnosed Cobbs with single incident
major depression and felt that she could not return to work.
(Id. ¶ 87). Dr. Luedke believed that Cobbs
would be incapacitated through February 30, 2017.
(Id. ¶ 92). Another doctor, Dr. Matthew Tatom,
has also treated Cobbs and diagnosed her with PTSD, anxiety,
and depression. (Id. ¶ 85).
Analysis of Claims Against First Transit, GLTC, and
Exhaustion of Administrative Remedies
Transit and GLTC argue that they should be dismissed because
Cobbs failed to name these entities in her EEOC complaint.
(Dkt. 15-1 at 4; dkt. 19 at 18-19). Specifically, Cobbs only
named CVT in her EEOC complaint. (Dkt. 5-2 at ECF pp.19-20,
42 U.S.C. § 2000e-5(f)(1), when the EEOC has concluded
its process, it “shall so notify the person aggrieved
and within ninety days after the giving of such notice a
civil action may be brought against the respondent named
in the charge . . . .” (emphasis added).
“[A] failure by the plaintiff to exhaust administrative
remedies concerning a Title VII claim deprives the Federal
Courts of subject matter jurisdiction over the claim.”
Jones v. Calvert Group Ltd., 551 F.3d 297, 300 (4th
Cir. 2008). However, “[c]ourts have developed
exceptions to this rule . . . where it is clear that the
defendant through some relationship with the named respondent
had notice of the charges and participated in the
conciliation process.” EEOC v. Am. Nat'l
Bank, 652 F.2d 1176, 1186 n.5 (4th Cir. 1981); see
also Chastang v. Flynn & Emirch Co., 365 F.Supp.
957, 964 (D. Md. 1973) (“[W]here there is a
substantial, if not complete identity of parties before the
EEOC and the court, it would require an unnecessarily
technical and restrictive reading of” the statute to
deny jurisdiction.), aff'd in relevant part, 541
F.2d 1040 (4th Cir. 1976). When determining whether there is
a substantial identity between the two parties, court
consider the following factors:
(1) whether the role of the unnamed party could, through
reasonable effort by the complainant, be ascertained at the
time of the filing of the EEOC complaint; (2) whether under
the circumstances, the interests of the named party are so
similar to the unnamed party's that for the purpose of
obtaining voluntary conciliation and compliance it would be
unnecessary to include the unnamed party in the EEOC
proceedings; (3) whether the unnamed party's absence from
the EEOC proceedings resulted in actual prejudice to the
interest of the unnamed party; and (4) whether the unnamed
party has in some way represented to the complainant that his
relationship with the complainant is to be through the named
Ross v. Franklin County Department of Social Services, et
al., No. 7:14-cv-512, 2016 WL 2757449, at *3 (W.D. Va.
May 11, 2016).
these factors, First Transit and GLTC share a substantial
identity with CVT and will not be dismissed due to Cobb's
failure to include them in the EEOC complaint. First, the
role of each unnamed party could not be ascertained at the
time of the filing. To date, Cobbs is unsure about which
company employed her and each of her supervisors. At this
stage of litigation, without proper discovery, Cobbs cannot
be expected to understand the detailed factual background of
a corporate structure that has numerous subsidiaries or
holding companies. See, e.g., DeLa Cruz v.
Piccari Press, 521 F.Supp.2d 424 (E.D. Pa. 2007)
(“Where courts have addressed the liability of a parent
corporation in the context of employment discrimination, most
have declined to dismiss the corporate parent at the Rule
12(b)(6) stage. This is so because the requisite inquiry is
fact-driven, and prior to discovery there is insufficient
evidence in the record to determine whether the parent
company” is liable.”).
First Transit and GLTC had the opportunity to obtain
voluntary conciliation and compliance during the EEOC
proceeding. For example, GLTC and First Transit are
represented in this litigation by the same attorney as CVT,
the party named in the EEOC compliant. With the same counsel
at this stage of litigation, GLTC and First Transit had
constructive notice and the ability to secure voluntary
compliance during the EEOC proceedings. First Transit and
GLTC have failed to demonstrate how their interests would be
sufficiently different to warrant them being named separately
in the EEOC complaint.
First Transit and GLTC's absence from EEOC proceedings
did not result in actual prejudice to their interests. As
mentioned above, the Amended Complaint sufficiently alleges
that First Transit, GLTC, and CVT are operated through common
management and control. Considering the closeness of these
three entities, it would seem that the interests of First
Transit, GLTC, and CVT are sufficiently aligned; therefore,
First Transit and GLTC's absence from the previous
proceedings would not prejudice them. Furthermore, First
Transit and GLTC have failed to demonstrate with specificity
how they would be plausibly prejudiced in the current case by
their absence from the earlier EEOC proceedings.
Plaintiff's complaint does not allege that First Transit
or GLTC represented to Cobbs that she should direct her
relationship of those companies through CVT, it can be
determined at this stage of litigation that Cobbs felt that
all three companies were acting together through this common
scheme of management and control. Furthermore, Cobbs was
unsure of the exact corporate entity that employed her and
named CVT in her EEOC complaint. (Dkt. 5 ¶ 13).
First Transit and GLTC will not be dismissed for
Plaintiff's failure to include them in the EEOC complaint
as the alleged complaint in this case establishes substantial
identity between the parties.
Quid Pro Quo Sexual Harassment
GLTC argue that Count II of Plaintiff's Amendment
Complaint should be dismissed because she has failed to plead
facts sufficient to establish a plausible claim of quid
pro quo sexual harassment. More specifically, CVT and
GLTC argue that Plainiff has failed to plead that her
rejection of Dorsey's sexual advances resulted in a
“‘tangible employment action, ' such as
discharge, demotion, or undesirable reassignment.”
Reinhold v. Virginia, 151 F.3d 172, 174 (4th Cir.
1998); see also Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 753-54 (1998) (“When a plaintiff proves
that a tangible employment action resulted from a refusal to
submit to a supervisor's sexual demands, he or she
establishes that the employment decision itself constitutes a
change in the terms and conditions of employment that is
actionable under Title VII.”).
contends that she has sufficiently pled quid pro quo
sexual harassment in her Amended Complaint because a tangible
employment action was taken against her when she continued to
resist Dorsey's sexual advances. Plaintiff alleges that
Dorsey said she could “have it anyway [sic]
she wanted” and would “fix it where there
wouldn't be any light duty work available to her, ”
which would force her to “stay home and get partial
pay.” (Dkt. 5 ¶ 32) Dorsey then asked if
Plaintiff had “given any thought to what she's
going to do.” (Id. ¶ 37). Finally, after
a few days of no response, Dorsey informed Plaintiff that
there was no more light duty work available, and she would
have to take time off of work. (Id. ¶ 38). As a
result, Plaintiff alleges she suffered “substantial
loss of income” by being unable to work. (Id.
¶ 104). Because “all allegations in the complaint
[are] taken as true and all reasonable inferences [are] drawn
in the plaintiff's favor, ” Chao v. Rivendell
Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005), the
Court can infer that Plaintiff's removal from light duty
work was due to her rejection of Dorsey's sexual
the key question is whether the loss of light duty work-which
in turn required Plaintiff to take time off and receive
workers' compensation in lieu of regular pay-constitutes
a “tangible employment action.” The parties
failed to identify, and the Court is unaware of, any cases,
in the Fourth Circuit or elsewhere, that have addressed this
precise question. Based on current case law, however, the
Court finds that denying Plaintiff light work constituted a
tangible employment action because it significantly reduced
Supreme Court defines a “tangible employment
action” as “a significant change in employment
status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities,
or a decision causing a significant change in
benefits.” Ellerth, 524 at 761. “A
tangible employment action in most cases inflicts direct
economic harm.” Id. at 762. The Fourth Circuit
has stated that being “discharged, demoted, or
reassigned” would all potentially qualify as tangible
employment actions. Matvia v. Bald Head Island Mgmt.,
Inc., 259 F.3d 261, 267 (4th Cir. 2001).
to Plaintiff's Amended Complaint, Dorsey informed
Plaintiff that light duty work was no longer available, which
would require her to seek workers' compensation. When an
employee is partially incapacitated, an employer may, but is
not required to, offer light duty work in lieu of receiving
workers' compensation. See Va. Code §
65.2-510; Big D Quality Homebuilders v. Hamilton,
228 Va. 378, 381 (1984). If an employer either cannot or
chooses not to provide light work duty, the injured employee
may receive two-thirds of their average weekly wage, provided
that they continue to seek alternative employment.
See Va. Code § 65.2-502; Ford Motor Co. v.
Favinger, 275 Va. 83, 89 (2008).
practical import of this is that after declining Dorsey's
advances Plaintiff went from working her regular schedule and
receiving full pay to receiving two-thirds of her pay, as
long as she demonstrated that she was seeking alternative
employment. While it is true that Plaintiff's employer
did not have a duty to offer her limited duty work, that is
not relevant here. Although Plaintiff was not entitled to
light duty work ex ante, she had already been
assigned light work duty, and being removed from it harmed
her. The important fact is that when Plaintiff denied
Dorsey's sexual advances, she was reduced from full pay
to two-thirds pay. This would appear to be a
“significant change in benefits” with a
“direct economic impact” contemplated by the
Supreme Court, Ellerth, 524 U.S. at 761-62, or
perhaps akin to being “demoted” as described by
the Fourth Circuit, Matvia, 259 F.3d at 267, and
thus a tangible employment action.
because Plaintiff has sufficiently pled that a tangible
employment action was taken against her, she has established
a plausible claim of quid pro quo sexual harassment,
and the claim will not be dismissed at this stage.
Hostile Work Environment
GLTC argue that Count III should be dismissed because the
allegations fail to establish a claim of a hostile work
environment. The essence of Defendants' argument is that
Dorsey's alleged actions amount to nothing more than
permissible, albeit persistent, attempts at initiating a
romantic relationship with Plaintiff. (Dkt. 19 at 15).
Because “all reasonable inferences [are] drawn in the
plaintiff's favor, ” Chao, 415 F.3d at
346, the Court finds that Plaintiff's factual allegations
are sufficient to establish a hostile work environment claim.
successful hostile work environment claim requires four
elements: “(1) unwelcome conduct; (2) that is based on
the plaintiff's sex; (3) which is sufficiently severe or
pervasive to alter the plaintiff's conditions of
employment and to create an abusive work environment; and (4)
which is imputable to the employer.” Anderson v.
G.D.C., Inc., 281 F.3d 452, 458 (4th Cir. 2002).
Defendants do not contest the first, second, or fourth
elements; rather, they argue that Dorsey's conduct was
not sufficiently severe or pervasive. (Dkt. 19 at 15).
be actionable, the conduct must create an objectively hostile
or abusive work environment, and the victim must also
perceive the environment to be abusive.” Spriggs v.
Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001).
“The objective severity of harassment should be judged
from the perspective of a reasonable person in the
plaintiff's position, considering all the circumstances,
” Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81, (1998), including “the frequency of
the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.” Anderson,
281 F.3d at 459. No single factor is determinative, and the
Fourth Circuit has made clear that Title VII is
“designed to protect working women from the kind of
male attentions that can make the workplace hellish for women
. . . [not] to purge the workplace of vulgarity.”
the factual allegations in the Complaint, the Court finds
that Plaintiff has established a plausible claim of a hostile
work environment. Plaintiff alleges a seemingly constant
stream of romantic pleas from Dorsey. She alleges numerous
after-hours text messages, (dkt. 1 ¶¶ 20-21, 39,
40-41, 43-44, 49-54), a personalized and arguably suggestive
Christmas card, (id. ¶ 19), physical contact,
(id. ¶¶ 25, 30), threats if she declined
Dorsey's advances, (id. ¶ 32), repeated
pleas from Plaintiff for the conduct to stop, (id.
¶¶ 33, 56), and inappropriate comments at
work, (id. ¶¶ 18, 24). Dorsey even
required Plaintiff to drive him to and from the airport
outside working hours and without compensation, presumably
under the threat of having light duty work withdrawn again.
(Id. ¶ 45). Dorsey also sent text messages
Plaintiffs daughter, asking her to relay messages to
Plaintiff. (Id. ¶ 55).
in their brief, argue that even taking the factual
allegations as true, Dorsey's actions were not pervasive
enough to create an objectively hostile work environment.
(Dkt. 19 at 15). They argue that Dorsey simply wanted to
start a romantic relationship with Plaintiff. (Id.
at 15-16). While it is true that some amount of romantic
interest can be anticipated when individuals are working in
close quarters, (Dkt. 5 ¶¶ 23, 26), the
Complaint alleges a course of conduct by Dorsey that amounted
to repeated and persistent romantic advances, threats of
adverse consequences for declining his advances, as well as
tangible employment actions when Plaintiff continued to deny
Dorsey's advances. While the Complaint only alleges two
instances of physical contact, (id. ¶¶ 25,
30), repeated physical contact is not an essential condition
of a hostile work environment claim. See E.E.O.C. v.
R&R Ventures, 244 F.3d 334, 340 (4th Cir. 2001)
(finding that allegation of unwanted touching are not
required to sustain a hostile work environment claim).
the allegations as true, the Court finds that a reasonable
person would find that the persistent and pervasive sexual
advances by Dorsey, taken as a whole, establish a cognizable
claim of hostile work environment. A deeper dive into the
validity and severity of these allegations is better suited
for summary judgment or the jury. Thus, Plaintiffs hostile
work environment claim will not be dismissed at this time.
third and final Title VII claim is retaliation by Defendants
after she reported Dorsey's actions to administrators.
(Dkt. 5 ¶¶ 108-13). The Supreme Court has held that
a plaintiff must show “retaliation that produces an
injury or harm.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 67 (2006). More specifically,
“a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, which in
this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.” Burlington N., 548 U.S. at 68
(internal quotation marks and citations omitted). Defendants
argue that even taking Plaintiff's allegations as true,
she has not pled retaliation that was objectively materially
adverse. (Dkt. 19 at 16-18).
alleges a series of retaliatory actions that were taken
against her after she reported Dorsey's conduct to the
general manager, Karen Walton, and a representative in human
resources, Gloria Berkley, on or about May 2, 2014. (Dkt. 5
¶¶ 59-63). These include questioning her daughter
about the sexual assault complaint, (id. ¶ 64),
violating company policy by not calling her back from
furlough, (id. ¶ 67-68), commenting about
“the mess that people were saying before the
furlough” after Plaintiff returned (id. ¶
70), treating Plaintiff harshly upon return her from
furlough, (id. ¶ 71-73), and issuing a
disciplinary letter based on a “missout”
(i.e., an unexcused absence) and a customer
complaint, (id. ¶ 78, Ex. 8).
taking the allegations as true and drawing reasonable
inferences in Plaintiff's favor, Chao, 415 F.3d
at 346, many of these actions are clearly not retaliatory,
because they are not “materially adverse.”
Burlington N., 548 U.S. at 68. For instance,
interviewing Plaintiff's daughter about Plaintiff's
sexual harassment complaint was likely a required aspect of
the harassment internal investigation. Likewise, the comments
made upon Plaintiff's return from furlough and the
allegations of harsh treatment, absent additional facts, do
not appear to be invidious or even particularized to
Plaintiff. Finally, the disciplinary letter, on its face,
appears to be substantiated by facts, rather than a targeted
as Defendants appear to concede, the allegation that
Defendants failed to call Plaintiff back from furlough to
fill the open position, if accurate, would amount to
materially adverse retaliation. According to the Complaint,
Plaintiff and others were placed on furlough starting May 10,
2014. (Dkt. 5 ¶ 66). After a week or two on furlough,
Gloria Berkley called Thomas Coles to inform him that a
position had opened up, but he declined. (Id. ¶
67). According to company policy, Plaintiff should have been
the next person contacted about the open position,
considering her seniority, but she was not called.
(Id. ¶ 68). Consequently, Plaintiff was not
called back from furlough until early August. (Id.
Defendants themselves state, “[p]erhaps the allegation
about the call back is sufficient to be a material action,
based on the preferences given plaintiff at this [12(b)(6)]
stage.” (Dkt. 29 at 5). Defendants argue that this is
“scant evidence of retaliation, ” (id.),
but Rule 12(b)(6) does “not require heightened fact
pleading of specifics, but only enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plaintiff's allegations, if true, would demonstrate that
she remained on furlough over two months more than necessary,
as a way of punishing her for reporting Dorsey. This
financial disincentive is a materially adverse action that
“might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.”
Burlington N., 548 U.S. at 68 (internal quotation
marks and citations omitted). Accordingly, Plaintiff's
retaliation claim is plausible and will not be dismissed at
this stage of the litigation.
Analysis of Claims Against Dorsey
Title VII Claims
Motion to Dismiss asks the Court to dismiss the Title VII
claims against him, i.e., hostile work environment
sexual harassment (“Count I”), quid pro
quo sexual harassment (“Count II”), and
retaliation (“Count III”). (Dkt. 31-1 at 6).
Because “[e]mployees are not liable in their individual
capacities for Title VII violations, ” Lissau v. S.
Food Serv., Inc., 159 F.3d 177, 178 (4th Cir. 1998), and
Plaintiff concedes this point, (dkt. 33 at 7), Counts I, II,
and III against Dorsey will be dismissed.
Intentional Infliction of Emotional Distress
argues that Plaintiff failed to bring her intentional
infliction of emotional distress (“IIED”) claim
within the statute of limitations, or alternatively, she
failed to plead facts sufficient to create a plausible case
of IIED. (Dkt. 31-1 at 6). The Court finds that, looking only
to actions that took place within the statute of limitations,
Plaintiff has failed to assert a cognizable claim of IIED.
Consequently, the IIED claim will be dismissed. 1.Statute
of Limitations The statute of limitations for claims of
IIED is two years. Va. Code § 8.01-243 (“[E]very
action for personal injuries, whatever the theory of
recovery, . . . shall be brought within two years after the
cause of action accrues.”). Dorsey asserts that the
latest actions alleged to constitute IIED occurred on or
around March 12, 2014, but the Complaint was filed on April
1, 2016. (Dkt. 31-1 at 6). Plaintiff concedes that many of
the actions in the Complaint took place prior to April 1,
2014 (i.e., outside the statute of limitations), but
she argues that the post-April 1st allegations are sufficient
to establish a claim of IIED. Most notably, Plaintiff alleges
that Dorsey “rode the route [she] was assigned as a
form of intimidation” after April 1st. (Dkt. 33 at 3).
Beyond that, however, there are no allegations in the
Complaint that occurred within the statute of limitations
that could be construed as supporting an IIED claim against
Dorsey. Plaintiff, in her brief, references Dorsey's text
messages, physical touching, sexual comments, threats, and
other actions, (dkt. 33 at 5-6), but all these actions
occurred unequivocally before April 1, 2014. (Dkt. 5
¶¶ 16-52 (outlining the course of conduct by
Dorsey, all of which took place before April 1, 2014)). As
such, Plaintiff's IIED claim is not time barred, but it
must stand solely on the scant allegations of conduct by
Dorsey after April 1, 2014.
order to state a claim for IIED, a litigant must plead: (1)
the defendant's conduct was intentional or reckless; (2)
the conduct was outrageous or intolerable; (3) there was a
causal connection between the defendant's conduct and the
resulting emotional distress; and (4) the resulting emotional
distress was severe. Almy v. Grisham, 273 Va. 68, 77
(2007). Even after treating all the allegations in the
Complaint as true and resolving reasonable inferences in
Plaintiff's favor, she has failed to establish a
plausible claim of IIED.
Court begins its analysis from the baseline that “IIED
claims are disfavored in Virginia, ” Marcantonio v.
Dudzinski, 155 F.Supp.3d 619, 632 (W.D. Va. 2015), and
the alleged conduct must be considered “so outrageous
in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.”
Almy v. Grisham, 273 Va. 68, 78 (2007). Here, the
only conduct by Dorsey that occurred within the statute of
limitations was riding Plaintiff's route as a means of
intimidation. (Dkt. 33 at 3). This conduct is far from being
what a reasonable person would call outrageous or
intolerable. Even drawing all inferences in Plaintiff's
favor, she has failed to satisfy the elements of IIED, and
her claim will be dismissed.
Motion to Dismiss argues that Plaintiff's assault claim
(“Count V”) should be dismissed because she
failed to file her claim within the two-year statute of
limitations. (Dkt. 31-1 at 9). Plaintiff concedes this point.
(Dkt. 33 at 7). As Dorsey is the only defendant named in the
assault charge, Count V will be dismissed from the case in
on the foregoing, CVT and GLTC's Motion to Dismiss, (dkt.
18), as well as First Transit's Motion to Dismiss, (dkt
15), will be denied. Plaintiff has properly exhausted her
administrative remedies and pled facts sufficient to
establish quid pro quo sexual harassment, hostile
work environment, and retaliation claims under Title VII.
Dorsey's Motion to Dismiss, (dkt. 31), will be granted,
the claims against him will be dismissed, and he will be
terminated from the case. Dorsey is not personally liable is
for any Title VII violations, the assault claim is barred by
the statute of limitations, and Plaintiff has failed to state
a plausible claim for IIED.
appropriate Order will issue, and the Clerk of the Court is
hereby directed to send a certified copy of this Memorandum
Opinion to Plaintiff, Defendants, and all counsel of record.
 Plaintiff was on light duty to begin
with because she had been injured and restricted to light
duty work. (Dkt. 5 ¶¶ 14-15). By “partial
pay, ” Dorsey was presumably referring to receiving
workers' compensation rather than full wages.