United States District Court, E.D. Virginia, Norfolk Division
JEANETTE L. BAILEY, Plaintiff,
VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Defendant.
OPINION AND ORDER
S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on a Motion to Dismiss filed by
Defendant Virginia Department of Alcoholic Beverage Control
("ABC" or "Defendant"), pursuant to
Federal Rule of Civil Procedure 12(b)(6). ECF No. 3. For the
reasons stated below, Defendant's Motion to Dismiss is
GRANTED. The Court PROVIDES
Plaintiff Jeanette L. Bailey ("Bailey" or
"Plaintiff") with leave to amend the Complaint to
cure all defects within fifteen (15) days after the entry of
FACTUAL AND PROCEDURAL HISTORY
is a resident of Chesapeake, Virginia. Compl. ¶ 1, ECF
No. 1. Defendant is an agency of the Commonwealth of
Virginia. Id. ¶ 2. Defendant oversees the
distribution of alcohol in Virginia and operates a liquor
store at 2301 Colley Avenue, Norfolk, Virginia 23517.
Id. Bailey was employed by Defendant as a sales
associate at that store location beginning on April 25, 2017.
Id. ¶ 7.
Plaintiff's employment, a co-worker named Robert
("Robert") touched Plaintiff in a sexually
suggestive manner several times. Id. ¶ 9. In
May 2017, Robert touched Plaintiff on her lower back and ran
his fingers up Plaintiff's back. Id. ¶ 10.
Plaintiff verbally objected. Id. In June 2017,
Robert grabbed Plaintiff by her shoulders and rubbed against
her. Id. ¶ 12. Plaintiff again verbally
complained after both incidents to Melissa Parker
("Parker") . Id. ¶¶ 10, 12.
Parker was the store manager and had supervisory, hiring and
firing power over Plaintiff. Id. ¶ 8. Parker
disregarded Plaintiff's complaint regarding the May 2017
incident, stating "oh, that's just Bob."
Id. ¶ 11. Parker told Plaintiff a few days
after the June 2017 incident that she had spoken to Robert
and that he would not touch her again. Id. ¶
Plaintiff alleges that throughout her employment, managers
and staff made inappropriate sexual comments, sexual
innuendos, and showed off tattoos located in normally-clothed
body areas. Id. ¶ 14. These actions made
Plaintiff uncomfortable, and Plaintiff complained to Parker.
Id. In particular, Robert would comment on
Plaintiff's appearance and stare at her. Id. In
July 2017, Plaintiff spoke to ABC's human resources
department and requested to be transferred to another store.
Id. ¶ 15.
15, 2017, Robert came up behind Plaintiff, leaned over and
around her, and dropped a pen on the register where Plaintiff
was working. When Plaintiff complained that Robert was
violating her personal space, he stated "I'm trying
not to touch you." Id. ¶ 17.
20, 2017, Plaintiff was scheduled to begin work at 9:30 a.m.
to prepare the front of the store before the store's
10:00 a.m. opening time. Id. ¶ 18.
Plaintiff arrived, she found feces spread on the carpets
approaching the register as well as a bag filled with feces
and tissue paper next to the register ("July 20
Incident") . Id. ¶ 20.
only other employees present when Plaintiff arrived were
Robert and an assistant manager. Id. ¶ 19.
Robert's shift began at 9:15 a.m., and his duties were to
handle the merchandise in the back or storage areas of the
store. Id. Robert was also responsible for closing
the store the night before. Id. ¶ 21. The
assistant manager had been scheduled to start work at 9:00
a.m. Id. ¶ 19. Plaintiff complained to the
assistant manager about the feces. Id. ¶ 22.
that day, Parker demanded that Plaintiff pay for a bottle of
liquor that Plaintiff overcharged to a customer approximately
one month prior. Id. ¶ 23. Parker made this
demand even though the bottle was still in the store's
inventory and the customer had been refunded for the
overcharge. Id. Plaintiff refused to pay for the
bottle, expressed to Parker that she felt she was being
harassed and retaliated against and resigned her employment
that afternoon. Id. ¶ 24.
9, 2018, Plaintiff filed a one-count Complaint in the Circuit
Court of the City of Norfolk. Notice of Removal, ECF No. 1,
¶ 1. The sole count of the Complaint alleges that ABC
unlawfully retaliated against Plaintiff in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seg. ("Title VII"). Compl.
11, 2018, Defendant filed a demurrer in the state court
proceeding. Demurrer, Ex. B of Notice of Removal, ECF No. 1.
On July 20, 2018, Defendant removed the action to this Court
pursuant to 28 U.S.C. § 1441 et seg. Notice of Removal,
ECF No. 1.
27, 2018, Defendant filed its Motion to Dismiss. ECF No. 3.
In its accompanying memorandum, ABC argues, inter alia, that
Plaintiff has failed to allege facts to suggest that
Defendant acted adversely against her for engaging in
protected activity, or sufficient facts to demonstrate
constructive discharge. Def.'s Mem., ECF No. 4 at 1.
Plaintiff filed her Response on August 10, 2018. ECF No. 5.
Defendant filed its Reply on August 16, 2018. ECF No. 6.
STANDARD OF REVIEW
well-established Rule 12(b)(6) standard of review permits
dismissal when a complaint fails "to state a claim upon
which relief can be granted." Fed.R.Civ.P. 12(b)(6). A
complaint fails to state a claim if it does not allege
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although a complaint
need not be detailed, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level." Id. at 555; see Ashcroft v.
Igbal, 556 U.S. 662, 678 (2009).
motion to dismiss tests the sufficiency of a complaint
without resolving factual disputes, and a district court
"'must accept as true all of the factual allegations
contained in the complaint' and Mraw all reasonable
inferences in favor of the plaintiff.'"
Kensington Volunteer Fire Dep't v. Montgomery
Cty., 684 F.3d 462, 467 (4th Cir. 2012) (citation
omitted). Although the truth of the facts alleged is
presumed, district courts are not bound by the "legal
conclusions drawn from the facts" and "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." E. Shore Mkts., Inc. v.
Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.
2000); see Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). "Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
To survive a motion to dismiss under Rule 12(b) (6), "a
complaint must include 'more than an unadorned,
Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th
Cir. 2015) (quoting Iqbal, 556 U.S. at 678).
motion to dismiss pursuant to Rule 12(b) (6) must be read in
conjunction with Federal Rule of Civil Procedure 8(a)(2).
Rule 8(a)(2) requires only "a short and plain statement
of the claim showing that the pleader is entitled to
relief," Fed.R.Civ.P. 8(a)(2), so as to ". . . give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests. . . ." Twombly,
550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). Fair notice is provided by setting forth
enough facts for the complaint to be "plausible on its
face" and "raise a right to relief above the
speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact). . .
." Id. at 555 (internal citations
VII prohibits an employer from taking improper retaliatory
action against an employee attempting to assert his or her
rights under Title VII. According to the statute,
[i]t shall be an unlawful employment practice for an employer
to discriminate against any of his employees...because he has
opposed any practice made an unlawful employment practice by
this title, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title.
42 U.S.C. § 2000e-3(a). In order to succeed in a
retaliation claim, an employee must show that "(1) she
engaged in a protected activity; (2) the employer acted
adversely against her; and (3) there was a causal connection
between the protected activity and the asserted adverse
action." Ziskie v. Mineta, 547 F.3d 220, 229
(4th Cir. 2008) (citing Holland v. Washington
Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)).
initial matter, the Court notes that the parties do not
contest whether Plaintiff engaged in protected activity.
See Def.'s Reply, ECF No. 6 at 3 ("ABC
never contested the 'protected activity,' prong of
the analysis[.]"). Such activity can fall into two
categories. As the Fourth Circuit has explained,
"protected activities fall into two distinct categories:
participation or opposition. An employer may not retaliate
against an employee for participating in an ongoing
investigation or proceeding under Title VII, nor may the
employer take adverse employment action against an employee
for opposing discriminatory practices in the workplace."
Laughlin v. Metro. Washington Airports
Auth., 149 F.3d 253, 259 (4th Cir.1998) (citing 42
U.S.C. § 2000e-3(a)). "Opposition activity
encompasses utilizing informal grievance procedures as well
as staging informal protests and voicing one's opinions
in order to bring attention to an employer's
discriminatory activities." Laughlin, 149 F.3d
plaintiff engages in opposition activity, a plaintiff must
"prove that [s]he opposed an unlawful employment
practice which [s]he reasonably believed had occurred or was
occurring." Peters v. Sch. Bd. of City of Virginia
Beach, No. 2:01CV120, 2007 WL 295618, at *5 (E.D. Va.
Jan. 26, 2007). She must show (1) that she "subjectively
(that is, in good faith) believed" that the defendant
engaged in a discriminatory action and (2) "this belief
was objectively reasonable in light of the facts."
has engaged in a protected activity by opposing
discrimination practices on the basis of gender in the
workplace. Bailey alleges that she made multiple informal
complaints to Parker regarding Robert's inappropriate
contact, how Robert stared at her, and the general sexual
comments made by staff. Compl., ECF No. 1 ¶¶ 10,
12, 14. She also complained to the assistant manager
following the July 20 Incident. Id. ¶ 22.
Further, Bailey alleges what she subjectively believed to be
harassment or a hostile work environment. Id. ¶
26. Courts have found it is objectively reasonable to believe
that purported sexual harassment involving inappropriate
touching on multiple occasions is an unlawful employment
practice. See, e.g., Ferrell v. Harris Ventures,
Inc., 812 F.Supp.2d 741, 746 (E.D. Va. 2011) (denying
summary judgment as the plaintiff could reasonably believe
that the sexual harassment by third party coworkers he heard
about was an unlawful employment practice). Here, Bailey
experienced the sexual harassment. Therefore, Bailey has
alleged that she engaged in a protected