United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, UNITED STATES DISTRICT JUDGE
a female firefighter, brings this employment discrimination
lawsuit, alleging acts of sex, age, and retaliation
discrimination by her former employer, the City of Lynchburg,
and by the "Lynchburg Fire Department." Defendants
have moved to dismiss, asserting-among other things-a lack of
exhaustion, the non-entity status of the Fire Department, and
various arguments on the merits. The Complaint contains
sufficient facts to sustain a sexually hostile work
environment claim, so that claim will proceed to discovery.
The Complaint also is rife with assertions of racist and
homophobic comments by Defendants' employees. While these
allegations are salacious, they are irrelevant to the legal
issues because Plaintiff is not alleged to be a member of the
relevant protected classes, so she cannot litigate claims
based on those classes. The other claims in the Complaint
must be dismissed from the case, as must the Fire Department.
Accordingly, the motion to dismiss will be granted in part
and denied in part.
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 plaintiffs 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 Ail. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (citations omitted).
need not "accept the legal conclusions drawn from the
facts." 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 plaintiffs
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
Sex and Age Discrimination
was employed as a firefighter with the Lynchburg Fire
Department from March 2013 to July 2015. (Dkt. 22 ¶ 90).
Defendants are the City of Lynchburg and the Lynchburg Fire
Department. (Id. ¶ 5). Plaintiff alleges that
she was subjected to a sexually hostile work environment.
(Id. ¶ 10). Because of the fire
department's alleged failure to correct the hostile work
environment, she was constructively discharged. (Id.
June 2013 to July 2015, Plaintiff alleges she endured
frequent and consistent sexualized language in the workplace.
(Id. ¶¶ 17-18). Co-workers bragged about
"Peking and scr*wing women" and referred to women
in pejorative terms. (Id. ¶ 21). Supervisors
and cadets consistently called Plaintiff and other women as
"b*ches and wh*res." (Id. ¶¶
17-18). Furthermore, on at least two occasions, male
co-workers called two female co-workers "slut" and
"stupid bitch." (Id. ¶ 23-24).
Plaintiff was also excluded from the department softball team
on account of her sex. (Id. ¶ 63).
Plaintiff alleges she was exposed to graphic sexual images
and situations during her employment. On April 30, 2014,
while Plaintiff and a co-worker were in the co-ed locker
room, the co-worker removed his pants and deliberately
exposed his penis to Plaintiff. (Id. ¶ 45).
Plaintiff reported this event to a supervisor. (See
Id. ¶ 46).
September 2014, during a meeting with a captain, the captain
showed Plaintiff a photo of a nude woman with her hand
positioned over her vagina as if she were masturbating.
(Id. ¶ 22). Furthermore, during a class
Plaintiff attended, male co-workers displayed pornography on
iPads provided by the fire department, and supervisors took a
laissez faire attitude toward the event.
(Id. ¶¶ 47-48). Then, at a May 19, 2015
training, a co-workers displayed a picture of a female
retired battalion chief and said, "Look at Ninette
showing off her tits on Facebook!", while others made
similarly lewd remarks. (Id. ¶ 120). While
Plaintiff was present, the picture was passed to a group of
ten other male employees, including the battalion chief.
Several of the males made lewd comments about the female
firefighter's breasts. (Id.). Although
supervisors again learned of the incident, they took little
or no action in response. (Id. ¶ 121).
who was over the age of forty, further contends she
experienced age discrimination. (M ¶¶ 90-91).
March 3, 2013, one of her co-workers questioned her arm
strength and whether she could do the job, saying
'"older people' can't get up in the
night." (Id. ¶ 106).
March 5, 2013, Plaintiff went to the Johnson Health Center in
Lynchburg to receive a physical examination, a requirement
for her employment. (Id. ¶¶ 96-97). During
the physical, the nurse told Plaintiff that she should
consider another job because being a firefighter was hard
work. (Id. ¶ 99). The nurse mocked her by
asking the date of her last menses and followed up with
"or if you still have one." (Id. ¶
101). The nurse said that women did not have the upper arm
strength to be firefighters, suggested to Plaintiff that she
had osteoporosis, and stated that Plaintiffs lack of bone
mass would impede her abilities. (Id. ¶¶
102-03). Plaintiff reported these statements to her
supervisor, and the supervisor allegedly said "Welcome
to the fire department!" (Id. ¶ 105).
months later, during the Lynchburg Fire Academy in May 2013,
one of her coworkers spoke poorly of elderly workers at a
Home Depot, saying they should be fired because they were
deaf and unable to do their jobs. (Id. ¶ 92).
The co-worker then analogized Plaintiff to the Home Depot
employees. (Id). Plaintiff reported the comments to
two battalion chiefs, who dismissed them and told Plaintiff
she "would be hearing a lot of that kind of talk."
(Id. ¶ 93-94).
alleges that she was retaliated against for reporting the
harassment to her superiors and for verbally supporting the
individuals who were being subjected to the alleged
harassment. (Id. ¶ 25). On October 3, 2013,
Plaintiff learned that the captain of one of the fire
stations told his crew that Plaintiff was not allowed to work
at the station or trade shifts there. (Id. ¶
70). As a result of being unable to work at that station,
Plaintiff suffered financially. (Id. ¶ 71).
Plaintiff further alleges that because she complained to her
fire department supervisors, she was excluded from department
activities and banished from certain houses. (Id.
¶¶ 82-83). Because of her complaints, she also
received "failed" grades on tests and was
assaulted. (Id. ¶¶ 81, 84).
alleges that she was defamed because her supervisor gave
Plaintiff a negative employment reference after Plaintiff
filed a change of discrimination with the EEOC. (Id.
¶¶ 86-88). Purportedly, the negative job
performance was false and inconsistent with Plaintiffs actual
performance reviews. (Id. ¶ 135). Furthermore,
Plaintiffs supervisor knew the statements in the job
reference were false and the supervisor's words were
motivated by malice. (Id. ¶¶ 137-38). As a
result of these alleged defamatory statements, Plaintiff lost
employment opportunities and suffered financially.
(Id. ¶ 89).
The Fire Department as a Cognizable Party
Lynchburg Fire Department argues that it is not a legal
entity that can be sued, but rather an operating arm of the
City of Lynchburg. Judge Cacheris in the Eastern District has
written that, in "Virginia, an operating division of a
governmental entity cannot be sued unless the legislature has
vested the operating division with the capacity to be
sued." Harrison v. Prince William Cty. Police
Dep't, 640 F.Supp.2d 688, 711 (E.D. Va. 2009);
see Muniz v. Fairfax Cty. Police Dep't, No.
L05CV466 (JCC), 2005 WL 1838326, at *2 (E.D. Va. Aug. 2,
2005) (dismissing claims against municipal police
department). The Virginia Code states that the
"governing body of any county, city, or town may
establish a fire department as a department of
government and may designate it by any name consistent
with the names of its other governmental units." Va.
Code § 27-6.1 (emphasis added); see Va. Code
§ 27-14 (granting ordinance power to local governing
bodies over fire departments established within their
provides no citation to authority in response, instead
casually stating that "there is no harm in naming both
in the style of the pleadings" and requesting "the
style remain the same until and unless there is evidence on
the issue." (Dkt. 28 at 13). But Plaintiff is obliged to
respond to Defendants' legal argument with legal
authorities undergirded by facts in the Complaint, which she
has not done. Thus, the Fire Department should be dismissed
as a party.
Failure to Exhaust Administrative Remedies Regarding Portion
of Age ...