United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge.
Wheeler filed this action against the Commonwealth of
Virginia, the Virginia Department of Alcoholic Beverage
Control, the Virginia Alcoholic Beverage Control Board
(collectively, "ABC"), and David Chrisley. In her
complaint, Wheeler asserts claims of discrimination and
harassment under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17, and related claims
of assault and battery under Virginia law. Chrisley has filed
a partial motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons that
follow, the motion will be granted.
following facts, taken from the plaintiffs complaint, are
accepted as true for purposes of the pending motion. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
("[W]hen ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint.").
of 2014, Wheeler was hired to work as a sales associate at
the ABC store in Bonsack, Virginia. A few weeks later,
Wheeler's manager fell and broke her ankle. While she on
medical leave, Chrisley filled in as the manager of the
Bonsack store. During that time, Chrisley made inappropriate
comments about Wheeler's looks and "went on and on
about the best sex positions." Compl. ¶ 15, Docket
No. 1. He also massaged Wheeler's hands and fingers on
one occasion, while breathing heavily and making a moaning
sound. That particular incident caused Wheeler to become
physically ill, and she left the store crying. Id.
at ¶ 16.
complained to a number of ABC employees about Chrisley's
behavior. Upon returning from medical leave, Wheeler's
manager advised her that she would never have to work with
Chrisley again. However, approximately two years later, in
the spring of 2016, Wheeler and Chrisley were assigned to
work at the same store. Almost immediately, Chrisley began
making unwanted sexual advances toward Wheeler. When Wheeler
was alone with him one night, Chrisley said that he had the
song "Let's Talk About Sex" stuck in his head,
and suggested that they go home together. Id. at
¶ 19. Chrisley "licked his lips slowly" while
making those comments, and then "began to touch
plaintiffs body, poking her in the side and back and
arm." Id. Chrisley also cornered Wheeler in the
store several times, while "saying 'ooh lala Ms.
Wheeler come with me ooh lala, ' or some such."
once again reported Chrisley's behavior. Despite
receiving complaints from Wheeler and other employees, ABC
promoted Chrisley to the position of assistant manager at an
ABC store in Blacksburg, Virginia. Wheeler alleges that
"Chrisley's sexual harassment of [her] and ABC's
failure to address the problem created an extremely hostile
and offensive work environment and made it difficult for her
to do her job." Id. ¶31.
filed this action against ABC and Chrisley on July 18, 2017.
Chrisley is named in Count II of the complaint, in which
Wheeler asserts claims of assault and battery under Virginia
law. Chrisley has moved to dismiss Count II to the extent
that the claims of assault and battery are based on acts that
occurred outside the applicable limitations period.
Chrisley's motion has been fully briefed and is ripe for
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint." Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). 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. Erickson,
551 U.S. at 94; see also Vitoh S.A. v. Primerose Shipping
Co., 708 F.3d 527, 539 (4th Cir. 2013). "While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of his entitlement 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 citation and quotation marks
omitted). To survive dismissal for failure to state a claim,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim for relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
seeks dismissal of Count II to the extent that it is based on
incidents of assault or battery that occurred prior to July
18, 2015. In response, Wheeler acknowledges that the
applicable limitations period for assault and battery claims
is two years, and that "the jury may only award damages
for assaults and batteries that occurred within the statute
of limitations." PL's Br. in Opp'n 5, Docket No.
36; see also Va. Code § 8.01-243(A).
Nonetheless, Wheeler argues that the partial motion to
dismiss should be denied, since her assault and battery
claims are based on incidents that occurred in 2016.
Id. at 6.
Virginia, assault and battery are considered "two
The tort of assault consists of an act intended to cause
either harmful or offensive contact with another or
apprehension of such contact, and that creates in that other
person's mind a reasonable apprehension of an imminent
battery. The tort of battery is an unwanted touching which is
neither consented to, excused, nor justified. Although these
two torts go together like ham and eggs, ...