United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
G. DOUMAR UNITED STATES DISTRICT JUDGE.
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.
Lindsey ("Plaintiff) filed the Amended Complaint against
defendants Ricoh USA, Inc. ("Ricoh") and Robert
Staton ("Mr. Staton") on August 30,
2017. 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).
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.
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
of Sexual Discrimination
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
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.
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.
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.
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.
of Racial Discrimination
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.
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.
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.
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.
Termination from Ricoh
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.
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.
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.
DEFENDANTS' RULE 12(B)(1) MOTION TO DISMISS COUNTS I-IV
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.
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).
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. 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.
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).
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 ...