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Fawley v. Layman, Diener & Borntrager Insurance Agency, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

June 19, 2018



          Elizabeth K. Dillon United States District Judge

         In this action, plaintiff Kathleen Fawley (formerly Kathleen Wilkins) has asserted two claims against her employer, Layman, Diener, & Bontrager Insurance Agency, Inc. (LD&B), under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e (Title VII). Count I alleges discrimination by LD&B against Kathleen Fawley on the basis of sex and/or pregnancy. Count II alleges that LD&B retaliated against her after she engaged in protected activity.

         LD&B now moves to dismiss Fawley's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. LD&B claims that she has not sufficiently alleged an adverse employment action for the discrimination claim or a materially adverse action under the retaliation claim. The motion has been fully briefed and was argued. For the reasons set forth below, the motion to dismiss will be granted in part and denied in part.

         I. BACKGROUND

         A. Fawley is hired and becomes pregnant.

         The facts below are based on Kathleen Fawley's complaint, which the court accepts as true for purposes of the motion to dismiss. Fawley was hired by LD&B on September 19, 2011, as an account manager working in the Broadway office. The Broadway office was staffed by Fawley and Charity Jones, who held the title of “Branch Coordinator” but did not directly supervise Fawley. Around May 2016, Fawley learned that she was pregnant. Fawley informed LD&B of her pregnancy after she had begun showing. Specifically, around July 12, 2016, Fawley claims that she told Charity Jones that she was pregnant and Jones subsequently became hostile toward her and her pregnancy. (Compl. ¶¶ 7, 15-18, Dkt. No. 1.)

         On July 13, 2016, Denise Click, the personal lines division manager in Harrisonburg and a friend of Jones, e-mailed Fawley to advise her that she would be getting a cost of living increase for the coming year. Fawley asked Click who she could contact about getting a raise over and above the cost of living increase. Click directed plaintiff to the CEO, Stephen Cavanaugh. Click also said she would follow up with Fawley's annual review. Shortly afterward, Click spoke with Jones. Two days later, Click told Fawley that Cavanaugh would be present for her performance review. (Compl. ¶ 19.)

         B. Fawley is given a negative performance evaluation and placed on an improvement plan.

         According to Fawley, her performance review on July 20, 2016, included “false and defamatory statements about her performance” and she was given an “unjustified” improvement plan. Fawley was accused of selling cosmetics while at work and using her phone for personal reasons. She was placed on a 60-day improvement plan which limited her ability to communicate with customers, co-workers, and others. She also claims that she objected to the “false statements, evaluation, and the improvement plan.” (Compl. ¶¶ 20-23.)

         Fawley contends that she performed all that was asked of her in the improvement plan. Despite this, Click and the Human Resources representative, Barbara Chandler, gave her a “Written Warning-Last and Final Notice” (Final Notice) on August 29, 2016. The Final Notice required Fawley to work from the main office in Harrisonburg in order to be supervised directly by Click. The change in office location increased Fawley's commute by 20 to 25 minutes each way, making it more expensive and difficult to get to work on time. Fawley notes that this extra commute time was particularly difficult because she had to put her school-age children on the bus in Broadway before commuting to Harrisonburg. Moreover, Fawley claims that in the past, employees were moved to the Harrisonburg office just before their employment was terminated. Additionally, the Final Notice said that she was on a minimum of 60 days of probation and that her job performance would be closely monitored. (Compl. ¶¶ 23-28, 39.)

         Fawley alleges that the Final Notice was discriminatory and part of LD&B's plan to set her up for termination because of her sex and/or pregnancy. Fawley filed her Charge of Discrimination (the Charge) on September 12, 2016, and a copy of the Charge was provided to Cavanaugh that day. (Compl. ¶ 31.)

         C. LD&B allegedly retaliates against Fawley after she files an EEOC charge.

         Fawley alleges that within about two weeks of filing the Charge, Click accused her of not reporting back to work in the afternoon after an out-of-town training. Fawley claims that a male employee in the same training also went home and that the established practice for such trainings was for employees to end their days after the training. (Compl. ¶ 32.)

         Then, in late October of 2016, LD&B advertised for applicants to fill Fawley's former position in the Broadway office. After advertising for applicants, LD&B subsequently placed a female employee with alleged disciplinary problems in the Broadway office, officially replacing Fawley. Fawley states that LD&B did not provide her with a reason for not returning her to the Broadway location after she passed the 60-day probationary period that was announced on August 29, 2016. She does not ...

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