United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
Jennifer Owen, a former county building inspector, filed a
three-count amended complaint against defendants, the County
of Franklin, Virginia (the "County"), and Robert
Andrew Morris. Counts I and II allege claims against the
County under Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e et seg,, for
sexual harassment and retaliation, respectively. Count III
alleges assault and battery under Virginia law against
Morris. The case is presently before the court on the
County's motion to dismiss Count II pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. For the
following reasons, the motion will be denied.
following facts, taken from the plaintiffs amended complaint,
are accepted as true for purposes of the County's motion
to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94
worked as a building inspector for Franklin County, Virginia,
from December 2013 to February 2016. Am. Compl. ¶¶
10, 30. In November 2014, Morris became the County Building
Official. Id. ¶ 12. Owen alleges that within a
few months of taking the position, Morris began to make
sexual comments to Owen and to pressure her about entering
into a sexual relationship with him. Id. ¶ 14.
On several occasions, Morris groped Owen's breasts,
forced her to touch his genitals, and grabbed her face in an
attempt to force a kiss. Id. ¶¶ 18, 24,
comments and behavior continued into the summer of 2015, when
Morris placed his hand on the plaintiffs genital area while
she was driving. Id. ¶ 25. In October 2015, he
slapped Owen's buttocks with a ruler in front of a
coworker. Id. ¶ 28. In approximately November
2015, Morris grabbed Owen's breasts underneath her bra.
Id. ¶ 27.
alleges that she rejected all of Morris' sexual advances
and complained to him about those advances, but his behavior
did not change. Id. ¶¶20, 23. Morris
"threatened [Owen] and told her if she went 'across
the hall' (where the office of human resources was
located) for any reason, then he would fire her no questions
asked." Id. ¶29. "[A]fter rejecting
[Morris] for months, " Owen alleges that "he
eventually terminated her employment on February 10,
2016." Id. ¶ 30.
on the foregoing allegations, Owen filed this lawsuit against
the County under Title VII and state law. She later amended
the complaint to substitute Morris as the defendant for the
state law claim. In the amended complaint, Count II alleges
retaliation under Title VII against the County. The County
has moved to dismiss Count II for failure to state a claim
upon which relief may be granted. The parties appeared before
the court for a hearing on this matter on November 16, 2017.
The matter is now fully briefed and ripe for review.
12(b)(6) motion to dismiss tests the sufficiency of a
plaintiffs complaint, which must contain "a short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a); see also
Presley v. City of Charlottesville, 464 F.3d 480, 483
(4th Cir. 2006). When deciding a motion to dismiss under this
rule, the court must accept as true all well-pleaded
allegations and draw all reasonable factual inferences in the
plaintiffs favor. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). However, to survive a motion to dismiss, a
complaint must "state a claim to relief that is
plausible on its face" and that "permit[s] the
court to infer more than the mere possibility of
misconduct." Id. at 678-79 (internal quotation
marks omitted). The plaintiff must rely on "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). A
complaint's "[f]actual allegations must be enough to
raise a right to relief above the speculative level."
VII prohibits an employer from retaliating against an
employee "because [the employee] has opposed any
practice made an unlawful employment practice by [Title
VII]." 42 U.S.C. § 2000e-3(a). In the absence of
direct evidence of retaliation, the plaintiff may proceed
under the burden-shifting framework from McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). The
plaintiff bears the initial burden of establishing a prima
facie case of retaliation, which has three elements: (1) the
plaintiff engaged in a protected activity; (2) her employer
took a materially adverse action against her; and (3)
"there was a causal connection between the protected
activity and the asserted adverse action." Hoyle v.
Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). If
a plaintiff establishes a prima facie case, the burden then
shifts to the employer to identify a legitimate,
non-retaliatory reason for its conduct. Id. If the
employer succeeds in making a showing of such a reason, the
burden shifts back to the plaintiff to prove that the
employer's reason was a mere pretext for retaliation.
County has moved to dismiss Count II of Owen's amended
complaint for failing to plausibly allege causation. [*] Specifically, the
County argues that a plaintiff must allege but-for causation
in order to survive a motion to dismiss a Title VII
retaliation claim. In support of this argument, the County
cites Villa v. CavaMezze Grill LLC, which held that,
at the summary judgment stage, a plaintiff must prove that
'"the desire to retaliate was the but-for cause of
the challenged employment action.'" 858 F.3d 896,
900 (4th Cir. 2017) (quoting Univ. of Tx. Sw. Med. Ctr.
v. Nassar. 133 S.Ct. 2517, 2528 (2013) (emphasis
County's emphasis on but-for causation Is misplaced.
Under the McDonnell Douglas framework, a plaintiff
starts by making a prima facie case of retaliation, which
does not require proof of but-for causation. Foster v.
Univ. of Md.-E. Shore, 787 F.3d 243, 251 (4th Cir. 2015)
(requiring a plaintiff to prove but-for causation only after
the employer has shown that it acted on the basis of a
legitimate, non-retaliatory reason). "[T]o satisfy the
ultimate burden of persuasion, " which includes ...