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Phillips v. Lynchburg Fire Department

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

June 5, 2017

Ruth Anne Louise Phillips, Plaintiff,
v.
Lynchburg Fire Department and City of Lynchburg, Va., Defendants.

          OPINION

          NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

         Plaintiff, 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.

         I. Legal Standard

         A 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).

         A court 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).

         II. Facts as Alleged

         A. Sex and Age Discrimination

         Plaintiff 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. ¶ 27).

         From 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).

         Additionally, 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).

         In 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).

         Plaintiff, who was over the age of forty, further contends she experienced age discrimination. (M ¶¶ 90-91).

         On 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).

         On 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).

         Two 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).

         B. Other Allegations

         Plaintiff 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).

         Plaintiff 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).

         III. Analysis

         A. The Fire Department as a Cognizable Party

         Defendant 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 jurisdictions).

         Plaintiff 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.

         B. Failure to Exhaust Administrative Remedies Regarding Portion of Age ...


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