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Lindsey v. Ricoh USA, Inc.

United States District Court, E.D. Virginia, Norfolk Division

April 24, 2018

PATRICIA LINDSEY, Plaintiff,
v.
RICOH USA, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT G. DOUMAR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on a Motion to Dismiss the Amended Complaint ("Motion to Dismiss") filed by defendants Ricoh USA, Inc. and Robert Staton (collectively, "Defendants"). ECF No. 12. For the reasons stated herein, Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

         I. PROCEDURAL BACKGROUND

         Patricia Lindsey ("Plaintiff) filed the Amended Complaint against defendants Ricoh USA, Inc. ("Ricoh") and Robert Staton ("Mr. Staton") on August 30, 2017.[1] ECF No. 3. Counts I-IV of the Amended Complaint allege sex and racial discrimination by Defendants in violation of Title VII of the Civil Rights Act, 42. U.S.C. § 2000e, et seq., specifically, hostile work environment sex harassment (Count I); quid pro quo sex discrimination (Count II); hostile work environment racial harassment (Count III); and retaliation (Count IV). Id. Plaintiff also asserts common law claims of negligent hiring and negligent retention against Ricoh (Count V) and intentional infliction of emotional distress against both Defendants (Count VI). Id.

         On December 1, 2017, Defendants filed the instant Motion to Dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, ECF No. 12, which was accompanied by a supporting memorandum ("Def. Mem."), ECF No. 13. On December 14, 2017, Plaintiff filed a response in opposition to Defendants' Motion to Dismiss ("Resp."). ECF No. 15. On December 20, 2017, Defendants filed a reply brief ("Reply")- ECF No. 16. At the request of the Defendants, the parties appeared before the Court on February 21, 2018, for a hearing on Defendants' Motion to Dismiss. ECF No. 18. Such motion is now before the Court.

         II. FACTUAL BACKGROUND

         The following is a summary of the facts alleged in Plaintiffs Amended Complaint ("Am. Compl."). Plaintiff is a female Native American citizen of the United States and a resident of Norfolk, Virginia. Am. Compl, ECF No. 3, ¶ 3. She was an employee of Ricoh within the meaning of 42 U.S.C. § 2000e(f) from June, 2008, until she was terminated on November 1, 2016. Id. ¶ 4. From 2008 to 2014, she held the position of Site Manager II, and from 2014 until her termination, she held the position of Service Delivery Manager. Id. Ricoh is an employer within the meaning of U.S.C. § 2000e(b) and does business in Norfolk, Virginia. Id. ¶¶ 5-7. Mr. Staton is a citizen of the United States and resident of Richmond, Virginia. Id. ¶ 8. At all times relevant to this action, Mr. Staton was employed by Ricoh as an Area Manager in Norfolk, Virginia, and was Plaintiffs supervisor. Id.

         Allegations of Sexual Discrimination

         In June, 2009, Plaintiff began reporting directly to Mr. Staton. Id. ¶ 23. Beginning at that time, and persisting through Plaintiffs employment with Ricoh, Mr. Staton frequently implied that he wanted Plaintiff to perform sexual favors for him in exchange for employment benefits. Id. ¶ 28. On one occasion in August, 2009, Plaintiff complained to Mr. Staton after he made a series of comments to her about being inferior because she was female. Id. ¶ 34. In response, Mr. Staton told Plaintiff that "if she wanted him to reconsider promoting her and to stop verbally abusing her that she could provide him with oral sex." Id. He further stated that "if [Plaintiff] provided him with oral sex then all the trouble he was causing her would go away." Id. Plaintiff further alleges that, on October 9, 2014, Mr. Staton asked Plaintiff to have drinks with him at his hotel, which she refused. Id. ¶ 52. After she refused, Mr. Staton's hostile treatment toward Plaintiff intensified. Id. "From this time until [Plaintiffs] termination, each and every time Mr. Staton spoke to [Plaintiff] he treated her with hostility." Id.

         Also beginning in the summer of 2009, and persisting through Plaintiffs employment with Ricoh, Mr. Staton made frequent sex-based comments to Plaintiff that were "derogatory, abusive, and demeaning." Id. ¶ 29. For example, Mr. Staton told Plaintiff that he disliked working with women, that women were too emotional, and that they were a "pain in his ass." Id. ¶ 37. He also told Plaintiff that he preferred female managers to wear low-cut tops in order to show cleavage. Id. He also repeatedly told Plaintiff that she was stupid and fat, " including one occasion when he asked, "How can you walk in high heels when you are so fat?" Id.

         On two occasions in June, 2009, Plaintiff complained to Mr. Staton about his verbal abuse toward her. Id. ¶¶ 30, 32. On the first occasion, Mr. Staton responded with expletives and warned that Plaintiff should "never talk to a man like that" because she "was only a woman." Id. ¶ 30. On the second occasion, Mr. Staton indicated to Plaintiff that, so long as she was under his supervision, she would not be promoted as expected nor advance in the company. Id. ¶ 32.

         In August, 2009, and November, 2010, Mr. Staton indicated to Plaintiff in harsh language that she was stupid, weak, and/or incompetent at her job because she was female. Id. ¶¶ 34, 41. Moreover, on several occasions between 2012 and 2015, Mr. Staton told Plaintiff that he disliked working with her and/or disapproved of her work performance because she was female and hinted that her job was at risk. Id. ¶¶ 46, 47, 49, 51, 53. Plaintiff alleges that she reported this verbal harassment to human resources on at least five occasions during this time period, but each time Ricoh failed to take any corrective action. Id. ¶¶ 31, 33, 35, 48, 50. In addition, throughout 2016 until Plaintiff was terminated, Mr. Staton continued to make many degrading and misogynistic comments to Plaintiff about her weight, appearance, and intelligence because she was a woman. Id. ¶65.

         Plaintiff also alleges that in December, 2010, and October, 2011, Mr. Staton unjustifiably denied Plaintiff earned vacation time. Id. ¶¶ 42, 44. On both occasions, Plaintiff reported the conduct to human resources, and both times Ricoh failed to take any corrective action. Id. ¶¶ 43, 45.

         Allegations of Racial Discrimination

         On September 30, 2015, Mr. Staton informed Plaintiff that he was restructuring and that Plaintiff would start reporting to a new supervisor, Pamela Vanover, who would in turn report to Mr. Staton. Id. ¶ 55. Plaintiff claims that Mr. Staton "instructed Ms. Vanover to treat [Plaintiff] harshly in an effort to see [Plaintiff] resign, " and that "Ms. Vanover did in fact subject Plaintiff to constant hostility." Id. ¶ 56. On July 14, 2016, Ms. Vanover told Plaintiff that she was a "joke as a manager" and threatened Plaintiffs job. Id. ¶ 59. When Plaintiff called Mr. Staton attempting to report this incident, Mr. Staton hung up on her. Id. ¶ 60.

         In addition, Ms. Vanover frequently "taunted" Plaintiff because of her American Indian heritage. Id. ¶ 61. Specifically, Ms. Vanover left a bottle of hair removal on Plaintiffs desk; she told Plaintiff "the reason why the Indians lost to the Cowboys is because you were stupid;" and told Plaintiff that American Indian status does not matter at Ricoh. Id.

         Furthermore, on August 15, 2016, Ms. Vanover instructed Plaintiff to participate in a "pagan ritual" at work, which included burning sage in order to "get[] rid of demons" from the office. Id. ¶ 62. Plaintiff refused and said she did not believe in pagan ceremonies. Id. In response, Ms. Vanover said, "Aren't you American Indian?" Id. Later that day, Ms. Vanover pointed a bundle of sage in Plaintiffs face saying, "I am exercising [sic] demons, " implying that Plaintiff was a demon. Id. Ms. Vanover then stated that Plaintiff should assist with the exorcism ritual because she is American Indian and therefore is accustomed to performing rituals. Id. Plaintiff again resisted. Id. When Plaintiff reported this incident to Mr. Staton the next day, he responded that Ms. Vanover was probably kidding and told Plaintiff not to report it to human resources, saying that "she would be sorry" if she did. Id. ¶ 63. Plaintiff feared she would be fired if she reported the incident to human resources. Id.

         On September 15, 2016, Ms. Vanover called Plaintiff on her personal cell phone to tell her that Ms. Vanover was changing worksites within Ricoh. Id. ¶ 66. She implied that this transfer was due to Plaintiffs complaints by stating, "the Indians did not win against the white man years ago, but you did today." Id. Ms. Vanover also warned Plaintiff that Mr. Staton wanted to fire Plaintiff, that her "days were numbered, " and that "the reasons why Indians lost were because they were dumb." Id. Plaintiff immediately reported this conversation to Mr. Staton who told Plaintiff to forget the conversation. Id. ¶ 67.

         Plaintiffs Termination from Ricoh

         On October 5, 2016, Plaintiff learned from human resources personnel that Ms. Vanover submitted a "false and defamatory report" regarding Plaintiff to human resources. Id. ¶ 68. In response, Plaintiff told human resources that she felt that the false report was made in retaliation, that she feared that she would lose her job, and that she therefore felt uncomfortable participating in any further investigation involving Ms. Vanover or Ms. Staton. Id. She also communicated the same in writing to human resources via email. Id.

         On November 1, 2016, Mr. Staton terminated Plaintiff. Id. ¶ 69. Mr. Staton and Ricoh stated that she was terminated for cause because she had failed to report an incident involving employee Sharon Whitfield making a threat on October 4, 2016. Id. According to Plaintiff, however, this stated cause was "entirely pretextual." Id. She claims that the real reason she was terminated was in retaliation for her refusal to consent to Mr. Staton's sexual advances as well as for making numerous reports to human resources regarding the hostile workplace to which she had been subjected. Id. Plaintiff further alleges that, immediately upon being terminated, she began to have difficulty breathing. Id. ¶ 70. When she arrived home, her husband took her to the emergency room, where she was admitted for two days. Id. Plaintiffs medical providers told her that she could not work for three months. Id. Plaintiff further alleges that, prior to her termination, she had been receiving medical treatment for more than two years for work-related stress. Id.

         Plaintiffs EEOC Proceedings

         On March 6, 2017, approximately four months after her termination from Ricoh, Plaintiff filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC"). See Charge No. 437-2017-00501, Exhibit 1 to Am. Compl., ECF No. 3-1 at 1. On June 2, 2017, the EEOC issued a Dismissal and Notice of Rights form ("Notice") to Plaintiff regarding Plaintiffs Charge. See Exhibit 2 to Am. Compl., ECF No. 3-2, at 1. The Notice indicates that a copy of same was forwarded to defense counsel in this case. Id. On August 30, 2017, Plaintiff timely filed the instant lawsuit. ECF No. 3.

         III. DEFENDANTS' RULE 12(B)(1) MOTION TO DISMISS COUNTS I-IV

         Defendants first argue that all of Plaintiffs Title VII claims (Counts I-IV of the Amended Complaint) should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject jurisdiction because Plaintiffs EEOC Charge is not reasonably related to such claims and therefore Plaintiff did not exhaust her administrative remedies as required under 42 U.S.C. § 2000e-5(b). ECF No. 13 at 6-7. Defendants' Rule 12(b)(1) motion shall be granted in part and denied in part, as set forth below.

         A. The Exhaustion Requirement

         A plaintiff is required to file a charge with the EEOC and exhaust her administrative remedies before filing suit under Title VII. Bryant v. Bell Atlantic Maryland. Inc.. 288 F.3d 124, 132 (4th Cir. 2002); see also 42 U.S.C. § 2000e-5(f)(1). The "failure by [a] plaintiff to exhaust [such] 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. 2009). However, the filing of an EEOC charge "is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit." Chacko v. Patuxent Inst.. 429 F.3d 505, 510 (4th Cir. 2005). "Rather, the charge itself serves a vital function in the process of remedying an unlawful employment practice." Balas v. Huntington Inealls Indus.. Inc.. 711 F.3d 401, 407 (4th Cir. 2013).

         To file a charge with the EEOC concerning a Title VII violation, an aggrieved complainant must first submit to the EEOC information supporting the allegation, usually in the form of an intake questionnaire. 29 C.F.R. § 1601.6.[2] After receiving this information, the EEOC typically assists the complainant with filing a charge, including by drafting the charge itself, as was the case here. See Balas. 711 F.3d at 407 (citation omitted). A charge is deemed sufficient if it is "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1606.12(b). It must also be signed and verified. Id. § 1601.9.

         Within ten days after the charge is filed, the EEOC sends a notice and a copy of the charge to the respondent-employer. 29 C.F.R. § 1601.14. With this notice, the employer has the chance to "conduct its own investigation and attempt to resolve any discriminatory actions internally." Balas. 711 F.3d at 407 (citation omitted). The filing of the charge also triggers the EEOC's own investigation into the allegations and deployment of its "agency-monitored settlement" efforts. Id. The EEOC then may conclude its investigation in one of many ways, including (i) trying to resolve the matter through conciliation, (ii) filing suit, or (iii) permitting the complainant to file suit by issuing a notice of right to sue. 29 C.F.R. §§ 1601.24, 1601.28. Any notice of right to sue must include a copy of the charge. Id. § 1601.28(e)(3). Upon receipt of a notice of right to sue, the complainant has ninety days to file a lawsuit based on the charge. 42U.S.C. § 2000e-5(f)(1).

         As evidenced by these regulations, the "primary purpose" of Title VII's exhaustion requirement is "notice and conciliation." Chacko, 429 F.3d at 510. Therefore, the EEOC charge is not only a prerequisite to filing a Title VII suit; it also defines the scope of the formal litigation that follows once administrative remedies have been exhausted. Id. at 509. "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Jones. 551 F.3d at 300 (quoting Evans v. Techs. Applications & Serv. Co..80 F.3d 954, 963 (4th Cir. 1996)). Specifically, if the charge references ...


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