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Bailey v. Virginia Department of Alcoholic Beverage Control

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

January 7, 2019

JEANETTE L. BAILEY, Plaintiff,
v.
VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Defendant.

          OPINION AND ORDER

          MARK S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE

         This 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 this Order.

         I. FACTUAL AND PROCEDURAL HISTORY[1]

         Bailey 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.

         During 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 objected. Id.

         Plaintiff 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. ¶ 13.

         Further, 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.

         On July 15, 2017, Robert[2] 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.

         On July 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.

         When 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.

         The 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.

         Later 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.

         On May 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. ¶¶ 25-30.

         On July 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.

         On July 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.

         II. STANDARD OF REVIEW

         The 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).

         A 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, the-defendant-unlawfully-harmed-me accusation.'" Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (quoting Iqbal, 556 U.S. at 678).

         A 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 omitted).[3]

         III. DISCUSSION

         Title 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)).

         A. Protected Activity

         As an 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 at 259.

         Where a 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." Id.

         Plaintiff 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 activity.[4]

         B. Adverse ...


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