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Ballard v. Bed Bath & Beyond Inc.

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

May 7, 2018

BED BATH & BEYOND, INC., Defendant.


          Henry E. Hudson United States District Judge

         Plaintiff Regina Ballard ("Plaintiff) initially filed this action in the Circuit Court of the City of Richmond on June 1, 2017. On January 19, 2018, Plaintiff filed a Verified Amended Complaint ("Amended Complaint, " ECF No. 1-1), and, on February 8, 2018, Defendant removed the action to this Court. (Notice of Removal, ECF No. 1.) Presently before the Court is Defendant Bed Bath & Beyond Inc.'s ("Defendant" or "BB&B") Partial Motion to Dismiss and Motion to Strike pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(f) (ECF No. 3), filed on February 15, 2018.

         All parties have filed memoranda supporting their respective positions. The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before it, and oral argument would not aid in the decisional process. E.D. Va. Local Civ. R. 7(J).

         For the reasons that follow, Defendant's Motion to Strike will be granted in part and denied in part and its Motion to Dismiss will be granted in part and denied in part.

         I. BACKGROUND

         Plaintiff was an employee of BB&B from December 2003 to December 2015. (Am. Compl. ¶¶ 7, 40.) In August 2012, Plaintiff was both a store manager and an area manager for Defendant, and her husband, Clif Ballard, was a district manager for Defendant. (Id. ¶¶9, 10.) Plaintiff alleges that Defendant's regional manager, Tom Bailey, was having an affair with a BB&B employee and encouraged her husband to begin an affair with another BB&B employee. (Id. ¶¶ 13, 14.) She further alleges that Bailey facilitated and helped to conceal her husband's affair from her. (Id. ¶¶ 15, 16.) Upon discovering the affair, Plaintiff confronted her husband and complained to Defendant's human resource department about Bailey's role in it. Bailey later allegedly threatened Plaintiff, making clear that he "expected [her] to tolerate and acquiesce to her husband's affair with another [BB&B] employee, and to Bailey's encouragement of and favoritism toward the affair, as a condition of her avoiding retaliation from Bailey." (Id. ¶ 21.)

         Plaintiff alleges that she was demoted from her position as area manager, marginalized within the company, and subjected to taunting due to her complaints about Bailey's role in her husband's affair. (Id. ¶¶ 22-24.) Additionally, Plaintiff was transferred from her position as store manager to the same position in a "lower-performing store" in March of 2014. (Id. ¶ 25; Jorif Decl. ¶ 3.) At this new location, Plaintiff was prohibited from performing some of the functions typically entrusted to a store manager and was forced to deal with unruly employees that BB&B allegedly refused to discipline. (Am. Compl. ¶ 25.) Roger Price, an employee at Plaintiffs new store and son-in-law to BB&B area human resources manager Linda Hall, subjected Plaintiff to abusive and hostile behavior that included calling her a "bitch." (Id. ¶ 27.) Plaintiff requested assistance from BB&B's "higher managers" in dealing with Price but none was provided. (Id. ¶ 31.) Further, Plaintiff was disciplined for not timely sending the store schedule to her district manager, Todd Rabalais, despite the fact that creating the schedule was a function that she believes she was prohibited from performing. (Id. ¶ 34.)

         On December 9, 2015, Rabalais interviewed employees of Plaintiff s store and obtained statements from them that supported terminating Plaintiff. (Id. ¶ 39.) On December 29, 2015, BB&B terminated Plaintiff for "purposefully not processing separations for associates who had failed to report to work, and instead keeping said associates on the work schedule as active associates (despite the fact that they had not reported to work in several months)." (Id. ¶ 41.) Plaintiff alleges that it was common practice within BB&B to list former employees on the schedule as placeholders for newly hired employees whose paperwork had not yet been processed. (Id. ¶ 35.)

         Plaintiff filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC") on or about March 9, 2016. (Id. ¶ 4.) The Charge indicates that the discrimination was a "continuing action" that began on January 6, 2015 and continued until Plaintiffs termination on December 29, 2015. (Charge 1, ECF No. 4-1.) Plaintiffs Charge contains three relevant allegations. First, the Charge states:

I was subjected to working with an employee who had a pattern of discriminatory comments and harassing behaviors [sic] toward me. I was continually called a "bitch" and the employee made inappropriate sexual comments towards the workers in the facility. I reported this behaviors [sic] to my supervisor, Todd Rabalais, the District Manager who did nothing about his behaviors toward me. Every time I complained about the employee to Mr. Rabalais, I was written up shortly thereafter. The employee became aggressive and my supervisor started to limit my ability to perform my job. He would tell me I could not do things, and then would write me up when they were not completed by other staff.

(Id.) The Charge additionally alleges that Plaintiff was fired "due to placement of old employee [sic] names on the schedule, " that the "practice is used by several male colleagues, " and that Plaintiff was held to a different standard than her counterparts. (Id.) Finally, the Charge concludes: "I believe that [BB&B] discriminated against me due to my gender, and retaliated against me when I filed a complaint for the inappropriate behaviors [sic] and complained about the inappropriate treatment from a subordinate." (Id.)

         On or about February 13, 2017, Plaintiff sent a letter to the EEOC rebutting a filing that Defendant made to the EEOC and alleging discriminatory conduct by Defendant in relation to her husband's extramarital affair. (ECF No. 9-1, at 23-25.) The letter was not addressed to or copied to Defendant. (Id.) Defendant later received a copy of the letter through a Freedom of Information Act request that was not completed until after Plaintiffs Amended Complaint was filed, on January 19, 2018. (Reply Mem. Supp. 3 n.2, ECF No. 13.) On March 1, 2017, the EEOC sent Plaintiff a Dismissal and Notice of Rights informing Plaintiff of her right to file suit. (Am. Compl. ¶ 4(b).)


         A challenge to the court's jurisdiction made pursuant to Federal Rule of Civil Procedure 12(b)(1) can be facial or factual. When a defendant raises a factual challenge, "the district court may then go beyond the allegations of the complaint and resolve the jurisdictional facts in dispute by considering evidence outside the pleadings, such as affidavits." United States ex rel Vuyyuru v. Jadhav,555 F.3d 337, 348 (4th Cir. 2008). Consideration of evidence outside of the pleadings on a 12(b)(1) motion does not necessarily convert the motion to one for summary judgment. Evans v. B.F. Perkins Co.,166 F.3d 642, 647 (4th Cir. 1999). The burden of ...

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