Sonnier v. Diamond Healthcare Corp.
Sonnier v. Diamond Healthcare Corp.
Opinion of the Court
OPINION AND ORDER
This matter is before the Court on a Motion to Partially Dismiss Amended Complaint, ECF No, 10, filed by Diamond Healthcare Corporation and Diamond Healthcare of Williamsburg, Inc. (collectively, “Defendants”)., After 'examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the. decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loe. R. 7(J).
I. FACTUAL AND PROCEDURAL HISTORY
Diamond Healthcare Corporation is the parent company of Diamond Healthcare of
On September 10, 2012, Milov Sonnier (“Plaintiff’ or “Sonnier”), an African-American female, began .working for Defendants as a social worker. Id. ¶¶ 4, 8. Plaintiff alleges that she was sexually.harassed shortly after she began working for Defendants. According to Plaintiff, in the middle of November 2012, Greg Thomas (“Thomas”), another employee of .Defendants, first made a “statement of a sexual nature” to Plaintiff when he stated that “she was in his closet.” Id. ¶ 9. Plaintiff alleges that sometime during November or December, Thomas also told Plaintiff that “you look nice in that blouse.” Id. ¶ 10. Finally, during that same period, Thomas “leer[ed] at Plaintiff as she was bending over a chart rack and said to Plaintiff, “[y]ou look nice in those pants.” Id. at' 11.
After Thomas leered at Plaintiff- and told her that she “look[ed] nice in those pants,” Plaintiff told Thomas that-“she did not appreciate his inappropriate comment and asked him to stop.” Id. ¶ 12. In response, Thomas “stated that hé realized his comment was inappropriate and he apologized.” Id. ¶ 13. In addition to' confronting Thomas, that same day, Plaintiff complained to Tom Cino (“Cino”), her supervisor and Defendants’ “Social Work Director,” about the incident with ’Thomas and advised Cino that she “was uncomfortable with [Thomas].” Id. ¶ 14-15. According to Plaintiff, Cino told Plaintiff that he would “discuss the matter with [Plaintiff] later, but. never, did so.” Id. ¶ 16.
" In February 2013, Defendants transferred Thomas to the Social Work Department; the same department to which Plaintiff was assigned. Id. ¶ 17. On February 26, 2013, during a weekly supervision meeting with Cino,, Plaintiff again voiced her concerns about Thomas and her discomfort working with him. Id. ¶ 18.
On March. 4, 2013, Plaintiff contacted Defendants’ CEO, Chris Ruble (“Ruble”), but, according to Plaintiff, Ruble referred Plaintiff bqck to Cino, Id. ¶¶ 20-21. The next day, Plaintiff “contacted the ethics hotline and reported the incident with [Thomas] and that [Cino] was unresponsive.” Id. ¶ 21.
On March 13, 2013, Plaintiff met with Ruble, Cino, and Thomas to discuss the alleged incidents of sexual harassment. Id. ¶22. Plaintiff alleges that she “was-questioned, but [Thomas] was not.” Id. ¶ 23. Plaintiff alleges that, during March 2013, Cino-then retaliated .against her in a number of ways.
On March 29, 2013, Plaintiff prépared a letter of resignation. Id. ¶ 34. On April 2, 2013, Rene 'Larve, an employee in Defendants’ Human Resources department, told Plaintiff that it would be her last day. Id. ¶35.
Plaintiffs husband, Gary Sonnier, also worked for Defendants. Id. ¶ 56. On November 5, 2013, subsequent to Plaintiffs resignation, he overheard a conversation between Thomas and another employee, “mental health tech Tydell” (“Tydell”) after he passed them in the hallway. Id. Unbeknownst to Thomas and Tydell, Mr. Sonnier could hear what they were saying from his position in the hallway. See id. ¶57. Plaintiff alleges that Mr. Sonnier overheard the following conversation. Thomas told Tydell that; “[Mr. Sonnier’s] wife use[d] to work here.” Id. ¶ 58. Thomas then “began laughing” and stated “boy I sure tried to get inside of her.” Id. ¶ 59. According' to Plaintiff, that was a reference to Plaintiff. ' See id. Then, Plaintiff alleges, Thomas went on to “boast about inappropriate sexual comments that he made during the time she was employed with the company.” Id. ¶ 60. Ty-dell then responded to Thomas’s statements, “if I feel that I can get involved with a married woman I would have done the same- thing.” Id. ¶ 61. According to Plaintiff, Thomas and Tydell then laughed “in a man[ner] suggesting that [Thomas] had gotten away with his misconduct involving [Plaintiff].” Id. ¶ 62. Thomas allegedly pondered aloud, “I wonder if the brother is taking care of her at home[?]” Id. ¶ 63. Tydell responded, “he needs to.” Id. ¶ 64. Following that statement, Mr. Sonnier walked around the comer so that Thomas and Tydell could see him. Id. ¶ 65. Their conversation ceased. Id. ¶ 66.
Mr. Sonnier reported the conversation between Thomas and Tydell to Defendants’ CEO, Ruble, and to Stephanie Parker, a “Mental Health Tech.” Id. ¶ 67. However, “Mr. Sonnier did not hear anything from [Defendants] until his resignation letter was submitted on December 24, 2013.”
On March 28, 2014, Plaintiff filed an action in this Court asserting causes of action under the Civil Rights Act of 1866 (42 U.S.C. § 1981) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Complaint, ECF No. 1. In her initial Title VII claim, Plaintiff asserted that Defendants discriminated against her on the basis of her race, African-American, and sex, female. Id. ¶ 75. On May 23, 2014, Defendants moved to dismiss portions of Plaintiffs . Complaint. In response, Plaintiff filed h¿r First Amended Complaint on June 4, 2014. ÉCF No. 8. Therein, Plaintiff alleges unlawful discrimination on the basis of race, or color under the Civil Rights Act of 1866. Id. ¶¶ 71-75. In addition, Plaintiff asserts that Defendants discriminated against her on the basis of her sex, in violation of Title VII, in a number of ways. Under Title VII, Plaintiff asserts causes of action for disparate treatment, harassment, and.retaliation. M-¶¶ 78-80.
On June 16, 2014, Defendants moved to partially dismiss the First Amended Complaint. Defs.’ Mot. to Dismiss, ECF No. 10. Defendants contend that Plaintiff has failed Jo state a claim upon which relief can be granted with respect to her Title VII hostile work environment and retaliation claims. Id. at 1. Oh June 30, 2014, Plaintiff filed her brief in opposition to Defendants’ motion. Pl.’s Mem. Opp’n Mot. to Dismiss, ECF No. 12. On July 3, 2014, Defendants filed their reply brief in support of their motion. Defs.’ Reply Supp. Mot. to Dismiss, ECF No. 13. However, in such brief, Defendants relied heavily on the Fourth Circuit’s May 13, 2014 opinion in Boyer-Liberto v. Fontainebleau Corp., 752 F.3d 850 (4th Cir. 2014). Yet, two days prior to Defendants’ submis
On May 7,2015, after rehearing en banc, the Fourth Circuit issued its opinion in Boyer-Liberto. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc). By Order of May 11, 2015, the Court directed’'the parties to file supplemental briefing discussing Boyer-Liberto and its effect on the instant motion. ECF No. 151 The parties filed supplemental briefing in accordance with the Court’s May 11, 2015 Order. Accordingly, the matter is now ripe for disposition.
II. STANDARD OF REVIEW
Federal'Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint, or a claim within a complaint, based on the plaintiffs “failure to state k claim upon which relief can ' be granted.”. Fed. R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Rule 8(a)(2), which requires “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,’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (omission in original). The United States Supreme Court has interpreted the pleading standard set forth in Rule 8(a) as requiring that a complaint include enough facts for the claim to be “plausible on its face” and thereby “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, 570, 127 S.Ct. 1955 (internal citations omitted). The plausibility requirement is “not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility” that a defendant is liable. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In other words, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663, 129 S.Ct. 1937.
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’t v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). Accordingly, “ ‘Rule 12(b)(6) does not countenance ... dismissals based on a judge’s disbelief of a complaint’s factual allegations.’” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)) (omission in original). A complaint may therefore' survive a motion to dismiss “even if it appears ‘that a recovery is very remote and unlikely.’ ” Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
III. DISCUSSION
Defendants contend that Plaintiff has failed to plead sufficient facts to state a claim upon which relief can be granted as to Plaintiffs Title VII hostile work environment and retaliation claims. The Court will consider, in turn, the sufficiency
A. Plaintiffs Hostile Work Environment Claim
First, Defendants argue that Plaintiff has failed to state a hostile work environment claim upon which relief can be granted because Plaintiff has failed to allege sufficient facts to permit the Court to reasonably infer that Thomas subjected Plaintiff to harassing conduct that was objectively severe or pervasive enough to alter the conditions of Plaintiffs employment and create an abusive work environment. More specifically, Defendants contend that Thomas’s alleged actions towards Plaintiff were infrequent, isolated incidents — rather than “pervasive” harassment — and' involved only benign,'non-threatening comments — rather than objectively “severe” harassment. Furthermore, Defendants contend that Plaintiffs allegations regarding the conversation between Thomas and Tydell that occurred subsequent to Plaintiffs resignation do not render Plaintiffs allegations regarding Thomas’s conduct objectively severe or pervasive. Finally, Defendants assert that Plaintiff has failed to state a hostile work environment claim upon which relief can be granted even under Boyer-Liberto. ■
Title VII makes it an “unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). ‘“Since an employee’s work environment is a term or condition of employment, Title VII creates a hostile working environment causé of action.’” Freeman v. Dab-Tile Corp., 750 F.3d 413, 420 (4th Cir. 2014) (quoting EEOC v. R & R Ventures, 244 F.3d 334, 338 (4th Cir, 2001)). To establish a Title VII hostile work environment claim based on sex, a plaintiff must show that “the offending conduct (1) was unwelcome, (2) was, based on her sex, (3) was sufficiently severe or pervasive .to alter the conditions of her employment and. create an abusive work environment, and (4) was imputable to her employer.” Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc) (citation omitted); see also Boyer-Liberto, 786 F.3d at 276-77. Here, Defendants only challenge the sufficiency of Plaintiffs pleading with respect to the third element of a hostile work environment cause of action...
“Element three of a hostile work environment claim requires a showing that ‘the environment would reasonably be perceived, and is perceived, as hostile or abusive’; the plaintiff may, but is not required to, establish that the environment is ‘psychologically injurious.’” Boyer-Liberto, 786 F.3d at 277 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). This element has both subjective- and objective components; See Dab-Tile Corp., 750 F.3d at 421. “Whether the environment is objectively hostile or abusive is ‘judged from the per spective of a reasonable person in the plaintiffs position.’” Boyer-Liberto, 786 F.3d at 277 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). “That determination is made ‘by looking at all the circumstances,’ which ‘may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” .Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Additionally, “the totality of the circumstances includes conduct directed not at the plaintiff.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 333 (4th Cir. 2011). The totality-of-the circumstances standard, however,
. That said, Title VII does not impose a “general'civility code” on the workplace. Oncale, 523 U.S. at 81, 118 S.Ct. 998. “Activities' like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct.” EEOC v. Fairbrook-Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010) (citing Faragher, 524 U.S. at 788, 118 S.Ct. 2275); see also Vance v. Ball State Univ., — U.S.-, 133 S.Ct. 2434, 2455, 186 L.Ed.2d 565 (2013) (Ginsburg, J., dissenting) (quoting'B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992)) (noting that Title VII “does not reach ‘the ordinary tribulations of the workplace,’ -for example, ‘sporadic use of abusive language’ or generally boorish conduct.”).
In this case, at most, Plaintiff alleges that Thomas sexually harassed her on three occasions. According to Plaintiff, “during the middle of November [2012]” Thomas made his first “statement of a sexual nature” to Pláintiff when he stated to Plaintiff that “she was in his closet.” First Am. Compl. ¶ 9. Plaintiff alleges that sometime during that month or the next month, Thomas further told Plaintiff, “you look nice in that blouse.” Id. ¶ 10. In the most serious alleged incident of harassment, Plaintiff alleges that, during November 2012 of December 2012, Thomas “was leering at Plaintiff as she was bending over a chart rack and said to Plaintiff, ‘[y]ou look nice in those pants.’ ” Id. ¶ 11. Additionally, Plaintiff alleges that, subsequent to her resignation from Defendants’ employ, Plaintiffs husband overheard a conversation between Thomas and another employee, Tydell, in which Thomas stated “boy I sure tried to get inside of [Plaintiff],” “boast[ed] about inappropriate sexual comments that he made during the time [Plaintiff] was employed with the company,” “laugh[ed] in a manfner] suggesting that [Thomas] had gotten away with ... misconduct involving [Plaintiff],” and stated aloud “I wonder if the brother is taking care of her at home?” Id. ¶¶ 59-63. According to Plaintiff, in response, Tydell stated that “he needs to.” Id. ¶ 64.
Before assessing the sufficiency of Plaintiffs allegations, the Court must consider the extent to which the post-resignation conversation between Thomas and Tydell is probative of whether a reasonable person would perceive Thomas’s actions as creating a hostile or abusive work environment. To prevail on a hostile work environment claim, the plaintiff must establish that she was subject to an abusive working environment. Pueschel v. Peters, 577 F.3d 558, 565-66 (4th Cir. 2009). Thus, Thomas’s alleged actions that occurred after Plaintiff resigned could not have rendered any more or less severe or pervasive any harassment Plaintiff suffered. See id.
However, Plaintiffs allegations regarding the Thomas-Tydell conversation arguably are relevant to the Court’s assessment' of the severity or pervasiveness of the alleged acts of pre-resignation harass
Nevertheless, the Court concludes that Plaintiff has failed to allege sufficient facts to permit the Court to reasonably infer that Thomas’s actions were sufficiently severe or pervasive enough to alter the conditions of Plaintiffs employment and create an abusive work environment. Assuming the truth of Plaintiffs allegations, the totality of the circumstances indicates that a reasonable person in Plaintiffs position would not have viewed Thomas’s actions as hostile or abusive.
The factors that the court reiterated in Boyer-Liberto guide the Court’s analysis. First, the alleged harassment occurred relatively infrequently-three times during a two-month period. See, e.g., Overly v. KeyBank Nat’l Ass’n, 662 F.3d 856, 862-63 (7th Cir. 2011) (holding that supervisor referring to the plaintiff as “ ‘cutie’ 5 to 10 times over the course of two months” and stating that “[the plaintiffs] and another female co-worker’s ‘pretty faces’ would better represent [the employer] at a golf outing than his ‘ugly mug’ ” was not objectively severe or pervasive conduct); Singleton v. Dep’t of Corr. Educ., 115 Fed.Appx. 119, 120, 122 (4th Cir. 2004) (unpublished) (finding that the plaintiff had not satisfied, the objectively severe or pervasive conduct requirement, despite evidence that, inter alia, an employee insistently complimented [the plaintiff]; stared at her breasts when he spoke to her; on one occasion, he measured the length of her skirt to judge its compliance with the prison’s dress code and told her that it looked ‘real good’; [and] constantly told her how attractive he found her.”).
Importantly, indicia of the sort of harassment that the Fourth Circuit has found particularly serious are absent from Plaintiffs complaint. In evaluating whether a plaintiff has demonstrated that-a reasonable person in the plaintiffs position could conclude that severe or ¿pervasive conduct-created an abusive working environment, the Fourth Circuit has under
Next, Defendants assert that Plaintiff has failed to state a retaliation claim upon which relief can be granted because she has failed to establish that she engaged in protected activity. Although Plaintiff reported Thomas’s alleged acts of harassment to her supervisor, Ciño, and Defendants’ CEO, Ruble, in Defendants’ view, Title VII did not proscribe Defendants from retaliating against Plaintiff for such reporting because Plaintiffs belief that Thomas had sexually harassed her was unreasonable.
In addition to its substantive provisions regarding discrimination, Title VII also proscribes retaliation. Title VII provides, in pertinent part:
It 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 subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.
42 U.S.C. § 2000e-3(a). The latter portion of Title VII’s anti-retaliation provision is commonly referred to as the “participation clause;” the former, the “opposition clause.” Lindemann et al., supra, at 15-3. Only the opposition clause is at issue here.
“To establish a prima facie case of retaliation ..., a plaintiff must prove (1) that she engaged in a protected activity, as well as (2) that her employer took an adverse employment action against her, and (3) that there was a causal link between the two events.” Boyer-Liberto, 786 F.3d at 281 (citations and internal quotation marks omitted). With respect to the first element, under the opposition clause, “[e]mployees engage in protected oppositional activity when, inter alia, they ‘complain to their superiors about suspected violations of Title VII.’ ” Id. (quoting Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 548-44 (4th Cir. 2003)). Moreover, “[i]n the context of element one of a retaliation claim, an employee is protected when she opposes ‘not only ... employment actions actually unlawful under Title VII but also employment actions [she] reasonably believes to be unlawful.’ ” Id. at 282 (alteration in original) (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005)). In short, to satisfy the first element of a retaliation claim, a plaintiff that complained, to her employer, of a suspected hostile work environment is held to a lesser standard than a plaintiff that files a hostile work environment discrimination action. See id. at 285-86. The hostile work environment plaintiff must establish the existence of ari'actual objectively hostile or abusive work environment, but the retaliation plaintiff need not make such showing. Instead, a retaliation plaintiff has satisfied her burden if she alleges facts sufficient to permit a reasonable inference that she reasonably believed there was a hostile work environment in progress, even if her allegations do not permit a reasonable inference that an objectively hostile or abusive work environment actually’existed. See id.
In Boyer-Liberto, the Fourth Circuit set forth the standard a court must apply in assessing whether a plaintiff possessed a reasonable belief that an isolated incident of harassment constituted, unlawful discrimination. The court held:
an employee is protected- from retaliation for opposing an isolated incident of harassment when she reasonably believes that a -hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or 'that such an environment is likely to 'occur. The employee will have a reasonable belief that a hostile environment*361 is occurring if the isolated incident is physically threatening or humiliating.
Boyer-Liberto, 786 F.3d at 284.
In adopting that standard, the Fourth Circuit rejected the court’s panel decision in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006). The Jordan court had ruled that, in cases involving a complaint about an isolated incident of harassment, an employee “cannot have possessed a reasonable belief that a Title VII violation was in progress, absent evidence ‘that a plan was in motion to create such an environment’ or ‘that such an environment was [otherwise] likely to occur.’ ” Id. at 282 (alteration in original) (quoting Jordan, 458 F.3d at 340). However, in Boyer-Liberto, the court found that the Jordan standard “is at odds with the hope and expectation that employees will report harassment early, before it rises to the level of -a hostile-environment.” Id. at 282.
In particular, the court suggested 'that Jordan was inconsistent with the standards applicable to establishing an employer’s liability under Title VII, namely the Faragher/Ellerth defense and the fourth element of a coworker harassment hostile work environment claim. The court noted that,- in supervisory harassment cases where the employer has taken no tangible employment action, the Supreme Court has established the Faragher/Ellerth affirmative defense. Id. Under such defense an employer can" avoid liability by establishing that the plaintiff unreasonably failed “ ‘to take advantage- of any preventive or corrective opportunities provided by the employer.’ ” See id. (quoting Faragher, 524 U.S. at 807, 118 S.Ct. 2275). And “if an employee fails to -assert an internal complaint of sexual harassment, courts typically find the employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer.” Lindemann et al., supra, at 20-88. Similarly, in coworker harassment cases, although the Faragher/Ellerth affirmative defense is inapplicable, Title VII places- -on a plaintiff the obligation to demonstrate negligence on the part of her employer in allowing the harassment to occur. Accordingly, “thé victim of a co-worker’s harassment is prudent to‘ alert her' employer in order to ensure that, if the 'harassment continues, she can establish the negligence necessary to impute liability.” Boyer-Liberto, 786 F.3d at 282. Thus, in both' supervisory and coworker harassment cases, the court noted that Title VII encourages an employee to report harassment early. See id. In the former cases, early reporting is essential for an employee to defeat the Faragher/Ellerth defense by showing that the plaintiff took advantage of preventative or corrective opportunities; the latter, to establish that the defendant was aware of á coworker’s harassment of the plaintiff, yet negligently failed to remedy such abuse. However, the Boyer-Liberto court observed that Jordan, “rather than encourage the early reporting vital to achieving Title VII’s goal of avoiding harm,” “deter[ed] harassment victims from speaking up by depriving them of their' statutory entitlement to protection from retaliation.” Id. at 283. Put differently, by limiting the circumstances in which a belief of an ongoing hostile work environment would be deemed reasonable, Jordan discouraged employees from reporting harassment at its inception.
In the Boyer-Liberto court’s .view, Jordan placed a victim of alleged harassment in a Catch-22. If she reported discrimination too early, that is, before there was evidence, that “‘a plan was in motion to create such an environment’” or “‘that such an environment was [otherwise] likely to occur,’ ” id. at 282 (quoting Jordan, 458 F.3d at 340), her belief that it constituted a hostile work environment would be unreasonable, and the employer could retaliate
.At this stage, although it is a close case, the Court finds that Plaintiff has alleged sufficient facts to survive Defendants’ motion to dismiss her retaliation claim. To begin, even if the Court were to construe the three alleged incidents as “isolated incidents,” Plaintiff has not alleged , sufficient facts to satisfy Boyer-Liberto’s standard concerning isolated incidents of harassment because her allegations do not permit the Court to. reasonably infer that any of Thomas’s actions were physically threatening or humiliating. See id. at 283-84. However, unlike Boyer-Liberto, Plaintiff has alleged three discrete incidents of alleged harassment. First, Plaintiff alleges that, in the middle of November, Thomas told Plaintiff “she was in his closet.” First Am. Compl y 9. Although the Court has difficulty determining the extent to which such comment was “of a sexual nature,” Plaintiffs allegation that Thomas, while talking about Plaintiff, later “boast[ed] about [making] inappropriate sexual, comments,” could suggest that the closet remark had some sexual undertone. According to Plaintiff, following the “she was in his closet” statement, either that same month, or the next month, Thomas told Plaintiff that “[y]ou look nice in that blouse.” Id. ¶ 10. Such compliment of Plaintiffs appearance ordinarily might be perfectly acceptable. However, when considered in combination with the allegation of Thomas’s boasting regarding “inappropriate sexual comments,” even more so than the closet remark, Thomas’s comment about Plaintiffs appearance might reasonably be interpreted as having a sexual connotation. As the last act of alleged harassment, Plaintiff alleges that Thomas, in the same month as, or the next month after, his prior two comments, not only commented about Plaintiffs appearance again, but did so while “leering” at her as she was bending over a chart rack. See id. ¶11. Given that this third incident, as alleged, involved “leering” at Plaintiff, when the two prior incidents had not, a reasonable person in Plaintiffs position might believe that it was an escalation of the two prior allegedly harassing incidents. Considering the three alleged incidents of harassment together, and the increasingly sexual nature of Thomas’s comments — from a comment about his closet, to a comment about Plaintiffs appearance, to a comment about Plaintiff,s appearance while leering at her — a reasonable person in Plaintiffs position might believe that Thomas was harassing her in an escalating manner. Viewing Plaintiffs allegations as a whole, and cognizant of the importance of prompt reporting within the remedial scheme of Title VII, assuming the truth of the allegations that Thomas made comments about Plaintiffs appearance on at least two'occasions and with an increasingly sexual undertone, the Court concludes that a reasonable person in Plaintiffs position might have believed that Thomas’s behavior had ere-
In light of the Court’s ruling, a brief explanation may be in order to reiterate why Plaintiff has failed to state a claim with respect to her hostile work environment claim, but has stated a retaliation claim upon which relief can be granted. At first blush, it may seem incongruous to hold that Thomas’s actions were insufficiently severe or pervasive to allow a reasonable person in Plaintiffs position to believe that such actions had created a hostile or abusive work environment, while simultaneously holding that Plaintiffs belief that Thomas’s actions had created an actionable hostile work environment was reasonable. If a reasonable person could not have found Thomas’s conduct to be severe or pervasive enough to create a hostile or abusive work environment, how could Plaintiff reasonably believe that such an environment existed? The twofold remedial scheme -of Title VII answers that question.
In Title VII, Congress and the President sought to prevent two distinct, though related, harms: discrimination because of race, color, religion, sex, or national origin and retaliation. against an employee who has sought “to secure or advance enforcement” of Title VII’s protection against such discrimination. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); see also 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). The substantive, antidiscrimination provision of Title VII “seeks to prevent injury to individuals based on who they are, ie., their status'.” Id. “The antiretaliation provision seeks to prevent harm to individuals based on what they do, ie., their conduct.” Id. Moreover, as with antiretaliation provisions in other statutes, the primary purpose of such provision is to “[m]aintai[n] unfettered, access to, [the] statutory remedial mechanisms” that Title VII created. Id. at 64, 126 S.Ct. 2405 (first alteration in original) (internal quotation marks omitted) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Thus, the Supreme Court has recognized that Title VII’s antidiscrimi-nation and antiretaliation provisions serve different.purposes. See id. at 63, 126 S.Ct. 2405. And, perhaps unsurprisingly, they also impose different standards. Cf. id. at 64, 126 S.Ct. 2405 (based on the text and purposes of Title VII, holding that, in determining whether a. defendant has taken an adverse employment action, the antire-taliation provision proscribed conduct that “unlike' the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.”). As noted above, a plaintiff that seeks the protection of Title VII’s antire-, taliation provision by alleging that her employer retaliated against her for opposing á hostile work environment is held to a lesser standard than a plaintiff that seeks relief under Title VII’s antidiscrimination
Here, the different standards applicable to Title VII’s antidiscrimination and- an-tiretaliation provisions — namely, the lesser, reasonable belief standard to which a retaliation plaintiff is held with respect to showing opposition to an unlawful employment practice — compel different decisions regarding the sufficiency of.the pleading of Plaintiffs hostile work environment and retaliation claims. Although Plaintiffs hostile, work environment and retaliation claims both focus on Thomas’s conduct, the different standards applicable to discrimination and retaliation claims require the Court to view such allegations from a different lens vis-á-vis each claim. If Plaintiff relied solely on Title VII’s antidiscrimi-nation protection, her claim, as pleaded, would fail because Plaintiff has not plausibly alleged that Thomas’s actions were objectively severe or pervasive enough to create a hostile or abusive work environment. See supra Part III.A. However, in Title VII, Congress and the President did not end with Title VII’s proscription on discrimination because of sex. To secure their objective of a workplace free from such discrimination, they included the an-tiretaliation provision as part of Title VII’s remedial scheme. See White, 548 U.S. at 63, 126 S.Ct. 2405. And interpreting such provision broadly to protect an employee who complains to her employer about perceived hostile work environment harassment arguably comports with: the purposes of the antiretaliation provision, maintaining “unfettered access” to Title VII’s remedial mechanisms, id. at 64, 126 S.Ct. 2405; the general purpose of Title VII, “not to provide redress but to avoid harm,” Faragher, 524 U.S. at 775, 118 S.Ct. 2275; and the Fourth Circuit’s command that a victim promptly report harassment if she wishes to recover under Title VII, see Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269-70 (4th Cir. 2001); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267-68 (4th Cir. 2001). In this case, under the standard applicable to retaliation claims, Thomas’s alleged actions would have permitted Plaintiff to reasonably believe Defendants were subjecting her to an abusive work environment, though Thomas’s actions as alleged, independent of any alleged retaliation, did not create an actual hostile work environment.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Partially
Counsel for the parties are DIRECTED to contact the docket clerk, at 757-222-7213, within seven (7)- days after the entry of this Opinion and Order to schedule a Rule 16(b) pretrial conference.
The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of record. • ;
IT IS SO ORDERED.
. The facts of this case, drawn from the First Amended Complaint, are assumed true for the purpose of deciding the motion currently before the Court. See Kensington Volunteer Fire Dep't v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012). The facts recited here are not to be considered factual findings for any
. Plaintiff alleges various forms of retaliation. Defendants do not seek dismissal of Plaintiff's Title VII cause of action on the basis that Cino’s actions did not qualify as retaliation under Title VII. Therefore, the Court need not set forth such allegations.
. The First Amended Complaint also includes allegations concerning Plaintiff’s conversation with, Rene Larve and Plaintiff's work performance. For the purposes of resolving this motion, the Court need not set forth such allegations because they are not relevant to the issues presented in Defendants’ motion.
. In the First Amended Complaint, Plaintiff does not describe the content of Defendants’ response to Mr. Sonnier's letter of resignation.
. See also Harisell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997) (finding four alleged comments demeaning towards women not sufficiently pervasivé); Rizkalla v. Eng'g, Mgmt. & Integration, Inc., No. CIVA 1:05-
. See also Rivera v. Prince William Cnty. Sch. Bd., No. 1:09cv341 (GBL), 2009 WL 2232746, at *2, *5 (E.D.Va. July 22, 2009) (unpublished) (allegations that an employee made comments about the plaintiff’s sexual relationship with her husband, "asked her if she would wear lingerie for him or her husband,” “frequently used sexual innuendo referring to male genitalia” during conversations, and “sent her at least one email containing sexual comments and/or sexual innuendo” were insufficiently severe to create a hostile work environment); cf. Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 205, 208 (4th Cir. 2014) (coworkers maldng sexually explicit comments toward the plaintiff while grabbing themselves and explicitly referencing sexual activities was sufficiently severe or pervasive conduct); Ocheltree, 335 F.3d at 333 (holding that a reasonable juiy could conclude that an incident involving a “vulgar song and picture, and [] graphic descriptions of sexual activity (espedially oral sex) that consistently paintfed women in a sexually subservient and demeaning light were sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment-.and to create an abusive work environment”).
. To be sure, drawing all reasonable inferences in Plaintiff’s favor, Thomas’s alleged comments towards Plaintiff, if true, were boorish and . inappropriate. In particular, Thomas's actions in complimenting Plaintiff, while leering at her as she bent over a chart rack, cannot be condoned. But the Court must remain mindful of the Supreme Court’s admonition that Title VII is not a "general civility code." Oncale, 523 U.S. at 81, 118 S.Ct. 998. The Court’s disapproval of Thomas's alleged behavior does not save Plaintiff's otherwise — insufficient allegations regarding the third element of a hostile work environment claim.
. The Fourth Circuit’s recent decision in Boyer-Liberto does not alter the Court’s conclusion with respect to Plaintiff's sexual harassment claim. In Boyer-Liberto, where the plaintiff alleged a hostile work environment predicated on race, the plaintiff had presented evidence that a supervisory employee, twice within a two-day period, used an odious racial slur ¿gainst the plaintiff. 786 F.3d at 278-80. Sitting en banc, the Fourth Circuit held that such harassment, though isolated, was “extremely serious” and would permit a reasonable .finder of fact to conclude that such conduct created a hostile or abusive work environment. Id. at 280-81. In support of her claim that Defendant subjected her to a hostile work environment based on her sex, Plaintiff has not alleged facts to es- . tablish that Thomas engaged in any acts of harassment that are on par with the seriousness of the harassment in Boyer-Liberto.
. The Court notes that Defendants only challenged the sufficiency of Plaintiff’s pleading with respect to one element of the retaliation claim.. ■
Reference
- Full Case Name
- Milov M. SONNIER v. DIAMOND HEALTHCARE CORPORATION and Diamond Healthcare of Williamsburg, Inc., d/b/a The Pavilion at Williamsburg Place
- Cited By
- 9 cases
- Status
- Published