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Burke v. CHS Middle East LLC

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

February 4, 2019

NATALIE BURKE, Plaintiff,
v.
CHS MIDDLE EAST, LLC, Defendant.

          ORDER & MEMORANDUM OPINION

          Liam O' Grady Alexandria United Stated District Judge.

         This matter is before the Court on Defendant's Motion to Dismiss (Dkt. 6). The motion was fully briefed and the Court dispensed with oral argument. The Court carefully reviewed the pleadings, case law, and the timeline provided in Plaintiffs opposition brief. For the reasons that follow, and for good cause shown, Defendant's Motion to Dismiss (Dkt. 6) is hereby GRANTED as to Counts I, III, and IV, and DENIED as to Count II.

         I. BACKGROUND[1]

         Plaintiff Natalie Burke began working for Defendant CHS Middle East, LLC as a registered nurse in Basra, Iraq in August 2015. Compl. ¶¶ 6-8.

         In August 2016, Lee Workman became Plaintiffs direct supervisor. Id. at ¶ 14. Workman was promoted to Nurse Lead despite a formal complaint that he had sexually harassed a female government contractor, and he continued sexually harassing women after becoming Nurse Lead. Id. at ¶ 15-17.

         In April or May 2017, Workman "began sexually harassing" Plaintiff, including by "inappropriately touching her lower back." Id. at ¶¶ 17, 20. Plaintiff complained about Workman's sexual harassment to the Site Lead in May or June 2017, but after an investigation, Defendant found her complaint unsubstantiated on June 16, 2017 and directed her to not discuss the investigation. Id. at ¶¶ 18-22. In June or July 2017, Workman began discussing the investigation. Id. at ¶ 23. In July 2017, Plaintiff complained to her superiors that Workman was discussing the investigation and had not been given the same instruction to keep silent. Id. at ¶ 24. Plaintiff also complained that Workman retaliated against her by asking her to create spreadsheets he did not ask the other two nurses to make. Id.

         When Human Resources resolved Plaintiffs sexual harassment complaint against Workman, it noted that "unnecessarily moving [Plaintiff] to another shift or site would be perceived as retaliation." Id. at ¶ 22. Yet, on August 15, 2017, Plaintiff was informed she would be reassigned to Baghdad, a less desirable location, for an unspecified duration. Id. at ¶¶ 25-26. Defendant does not usually require nurses to "float" to different locations, especially not for more than a temporary basis to cover vacationing employees, and multiple nurses and other staff had never floated or had refused to float. Id. at ¶¶ 26-28. After informing Plaintiff of her transfer from Basra to Baghdad, Defendant assigned two new nurses to Basra. Id. at ¶¶ 30, 32.

         On August 16 and 22, 2017, Plaintiff complained that her transfer was retaliation for her sexual harassment complaint and she advised Defendant's Lead Director that she would file an EEOC complaint. Id. at ¶¶ 29, 31. Plaintiff initiated an EEOC complaint on August 30, 2017. Id. at ¶ 33. On September 13, 2017, the EEO mediator called Defendant's Human Resources and management, asking when Burke would be transferred back to Basra. Id. at ¶ 34. On November 7, 2017, Plaintiff was notified she would be transferred back to Basra. Id. at ¶ 35. On December 6, 2017, Plaintiff was transferred back to Basra to again work under Workman. Id. at ¶ 36.[2]

         On April 3, 2018, Defendant's Program Manager announced that "toxic" employees would not be renewed. Id. at ¶ 38. In mid-April 2018, four months after her transfer back to Basra, Plaintiff submitted her intent to renew her contract with Defendant for the fourth consecutive year. Id. at ¶ 37. On April 19, 2018, Defendant issued a new policy that limited contract renewals to three consecutive years as a way to get rid of "toxic" employees. Id. at ¶¶ 38, 43. Plaintiff later learned that Defendant considered her to be a "toxic" employee because she had complained about Workman's harassment and the subsequent retaliation against her. Id. at¶44.

         On May 21, 2018 Plaintiff was informed her contract would not be renewed, ostensibly because of Defendant's new policy. Id. at ¶ 45. Despite the policy, Defendant continued to renew the contracts of other employees who had not engaged in protected activity beyond their third consecutive year, even if the employee had received multiple write-ups for performance issues. Id. at ¶¶ 39-42. Plaintiff had always received positive performance reviews and feedback; though there were three write-ups about her, she had never been formally told about them. Id. at ¶¶ 7, 46.

         On June 5, 2018, Plaintiff resigned because "the working conditions were intolerable." Id. at ¶ 48. Defendant eliminated its policy limiting contract renewals to three consecutive years within months of Plaintiff s resignation. See Id. at ¶ 49.

         Plaintiff filed an EEO complaint on September 10, 2018 and alleges that she properly exhausted her administrative remedies. On November 29, 2018, Plaintiff filed suit against Defendant, demanding a jury trial and asserting four violations of Title VII: (1) discrimination based on sex, (2) retaliation, (3) hostile work environment based on sex, and (4) constructive discharge. Defendant moved to dismiss Plaintiffs Complaint in its entirety for failure to state a claim.

         II. LEGAL STANDARD

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." BellAtl Corp. v. Twombly,550 U.S. 544, 550 (2007). A motion to dismiss pursuant to Rule 12(b)(6) must be considered in combination with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief so as to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Fed.R.Civ.P. 8(a)(2); Twombly, 550 U.S. at 555. While "detailed factual allegations" are not required, Rule 8 does demand that a plaintiff provide more than mere labels and conclusions stating that the plaintiff is entitled to relief. Id. Because a Rule 12(b)(6) motion tests the sufficiency of a complaint without resolving factual disputes, a district court "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff.'" Kensington Volunteer Fire Dep % 684 F.3d at 467 (quoting E.I. du Pont de Nemours& Co. v. Kolon Indus., Inc.,637 F.3d 435, 440 (4th Cir. 2011)). Accordingly, a complaint may survive a motion to dismiss ...


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