Opinion
Civil Action No. 8:10-cv-02027-AW.
November 8, 2011.
MEMORANDUM OPINION
Plaintiff Brenda L. Clark brings this action against Defendant Sunipa II Inc. (“Sunipa”). Ms. Clark alleges claims of sexual harassment and retaliation in violation of Title VII. Pending before the Court is Sunipa’s Second Motion to Dismiss for Failure to State a Claim (“Second Motion to Dismiss”). The Court has reviewed the entire record, as well as the pleadings and exhibits, and finds that no hearing is necessary. Local R. 105.6 (D. Md. 2011). For the following reasons, the Court GRANTS-IN-PART and DENIES-IN-PART Sunipa’s Second Motion to Dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court takes the following facts from Ms. Clark’s Amended Complaint and views them in a light most favorable to her. Clark worked at IHOP. Clark alleges that a male coworker named Bernard asked her if she would give him a hug to console him for his personal problems. Clark further alleges that she agreed to hug Bernard as a friend. In Clark’s words, Bernard “groped [her] butt and squeezed it and lifted [her] off the floor” during the hug. Doc. 19 at 1. Clark alleges that she immediately told a manager named Vincent about the incident and that Vincent said he would take care of it. Several days later, Clark wrote two letters to the corporate office explaining her complaints because, in her estimation, nothing had been done. Clark contends that “everyone in the store started labeling her a trouble maker and kept their distance from [her]” when she notified IHOP of her complaints. Id. Yet Clark ignored this conduct and continued working. Clark further asserts that Bernard was suspended for two days pending the outcome of an investigation that ultimately cleared him of wrongdoing in connection with the hugging incident.
On October 31, 2009, a manager named Melvin suspended Clark as per the instructions of Sanjay Patel, the owner of IHOP. Clark arrived to work at 6:45 a.m. on this day. Clark had no way back home and so she asked a manager named James if she could have a coworker who was not due in until 8:00 a.m. take her home. According to Clark, James informed her that this would be okay as long as it did not interfere with the coworker’s work schedule. The coworker, Sharon, picked up Clark between 7:15 and 7:25 a.m. After taking Clark to Clark’s home “12 to 15 minutes away,” Sharon did not return to work until 8:40 a.m. Id. at 2. Clark alleges that she does not know why it took Sharon so long to return to work.
On November 2 or 3, Melvin told Clark that she was fired. Clark alleges that Melvin told her she was fired because she lied about Sharon and the manager James, as well as violated company policy by giving Bernard a hug. Clark further asserts that Bernard was not terminated even though he gave her a hug. Additionally, Clark maintains that she was a perfect employee until she complained about the hugging incident.
Clark filed a charge with the EEOC on February 27, 2010 and received her Right to Sue Letter on May 13, 2010. On July 26, 2010, Clark filed a Complaint. Doc. 1. On September 17, 2010, Sunipa filed a Motion to Dismiss or, in the Alternative, for a More Definitive Statement (“Motion for a More Definitive Statement”). Doc. 5. On July 11, 2011, the Court granted Sunipa’s Motion for a More Definitive Statement. Doc. 16. Clark responded by filing an Amended Complaint on September 26, 2011. Doc. 19. Four days later, Sunipa filed its Second Motion to Dismiss. Doc. 20. In its Second Motion to Dismiss, Sunipa argues that Clark fails to state cognizable claims for sexual harassment and retaliation.
II. STANDARD OF REVIEW
A. Motion to Dismiss
The purpose of a motion to dismiss is to test the sufficiency of the plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). These cases make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n. 3 (quoting Fed.R.Civ.P. 8(a)(2)). This showing must consist of at least “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
In addressing a motion to dismiss, a court should first review a complaint to determine which pleadings are entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1949–50. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. The court must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court need not, however, accept unsupported legal allegations, Revene v. Charles County Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). In sum, “factual allegations must be enough to 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).” Twombly, 550 U.S. at 555 (citations omitted).
In the context of employment discrimination, the Supreme Court has clarified that pleadings need not “contain specific facts establishing a prima facie case of discrimination under the framework set forth” in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508 (2002). To require otherwise would essentially create a “heightened pleading standard” under which a plaintiff without direct evidence of discrimination would need to plead a prima facie case even though she might uncover direct evidence of discrimination during discovery. Id. at 511–12. This would create the “incongruous” result of requiring a plaintiff “to plead more facts than [s]he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.” Id. Furthermore, before discovery “it may be difficult to define the precise formulation of the required prima facie case in a particular case.” Id. at 512; see also Twombly, 550 U.S. at 569–70 (explaining that Swierkiewcz is consistent with more recent case law).
Although Twombly overruled the general 12(b)(6) standard used in Swierkiewicz, Francis v. Giacomelli, 588 F.3d 186, 192 n. 1 (4th Cir. 2009), the analysis discussed here remains good law. Reed v. Airtran Airways, 531 F. Supp.2d 660, 666 (D. Md. 2008) (“The Twombly Court made clear that its holding did not contradict the Swierkiewicz rule that ‘a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination.’”) (citations omitted).
III. LEGAL ANALYSIS
A. Sexual Harassment
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to [her] . . . terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.A. § 2000e-2(a)(1). To prevail on a sexual harassment claim under this provision, the plaintiff employee must establish: (1) that the alleged harassment was unwelcome; (2) that the alleged harassment was based on gender; (3) that the alleged harassment was severe or pervasive; and (4) that there exists a basis for imputing liability to the employer. See Matvia v. Bald Head Siland Mgmt., Inc., 259 F.3d 261, 266 (4th Cir. 2001) (citation omitted). Supina challenges only elements 3 and 4. That is, Supina argues that Clark has failed to state a cognizable claim that the alleged harassment was severe or pervasive or that there is a basis for imputing liability to Supina.
1. Severe or Pervasive
Prong 3 of the prima facie case for hostile work environment requires plaintiffs to show that the alleged harassment is severe or pervasive. Severe or pervasive sexual harassment “alter[s] the conditions of [the victim’s] employment and create[s] an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Courts make this determination by considering the totality of the circumstances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Courts may consider the following circumstances when determining whether the conduct in question alters the conditions of employment and creates an abusive working environment: (1) its severity; (2) its frequency; (3) whether it is humiliating; (4) whether it unreasonably interferes with an employee’s work performance; and (5) the psychological effect of the alleged harassment on the employee. Id. Whether supervisory personnel takes part in the alleged harassment is another relevant consideration. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (citation omitted) (noting that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character”). “Although the law contains no per se requirement that the plaintiff allege each element of the prima facie case, a complaint still ‘must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face.’” Tasciyan v. Med. Numerics, Civil Action No. 11–1467 AW, 2011 WL 5119465, at *7 (D. Md. Oct. 28, 2011) (quoting Iqbal, 129 S. Ct. at 1949).
In this case, it is implausible that the conduct in question altered the conditions of Clark’s employment and created an abusive working environment. Clark’s allegations show that the hugging incident was isolated. Furthermore, Clark fails to allege that the incident affected her work performance. Indeed, although Clark alleges that people labeled her as a troublemaker and stayed away from her after she complained, she also asserts that she ignored this conduct and continued working. Likewise, Clark fails to allege that the conduct humiliated her or otherwise caused her psychological harm. Additionally, although Bernard’s conduct might have gone outside the scope of Clark’s consent, that Clark invited the hug mitigates the severity of Bernard’s conduct. Moreover, Clark does not allege that Bernard supervised her and the Amended Complaint does not lend itself to such an inference. In short, the aforementioned factors weigh heavily against the conclusion that the isolated hugging incident altered the conditions of Clark’s employment and created an abusive working environment. Hence, the Amended Complaint fails to state a cognizable claim that the isolated hugging incident was severe or pervasive for Title VII purposes.
2. Employer Liability
There are two primary avenues by which an employee can show that there is a basis for imputing liability to an employer in hostile work environment cases: vicarious liability and negligence. Ellerth, 524 U.S. at 764–65. Vicarious liability arises when the employee shows that a supervisor with immediate or successively higher authority over the employee creates the hostile work environment and the employer cannot establish an affirmative defense. See id. at 764–65. By contrast, negligent liability arises when the employer knows or should have known about the harassment and fails to stop it. Id. at 759. Absent direct evidence that an employer knows of the harassing conduct, courts may impute knowledge to an employer only if the conduct is so pervasive or repetitive that a reasonable employer must be aware of it. See Spicer v. Com. of Va., Dep’t of Correc., 66 F.3d 705, 710 (4th Cir. 1995). When an employer has constructive knowledge of the conduct, the employer incurs negligent liability only if the employer fails to take prompt and adequate remedial action. See id.
In this case, Clark fails to allege that Bernard supervised her and the Amended Complaint lends itself to no such inference. Therefore, vicarious liability is not an option. As for negligence, Clark does not allege that Sunipa knew of the harassing conduct before it took place. Indeed, Sunipa could not have known about the hugging incident before it transpired because it was an isolated event. Concededly, Clark contends that she told a manager named Vincent of the hugging incident and that “nothing was done” for “several days.” Doc. 19 at 1. Yet Clark fails to allege that other incidents of sexual harassment took place during this period of “several days.” Furthermore, although Clark asserts that she wrote the corporate office about her grievances during this period, she does not allege that Vincent deliberately or negligently failed to act on her complaint. In fact, the Amended Complaint states that “apparently an investigation had been done on Bernard.” Id. The Amended Complaint further states that Bernard had been suspended during the investigation and that the investigation cleared him of wrongdoing. In short, Clark’s own assertions show that the employer took prompt and adequate remedial action. Accordingly, it is implausible that Clark could prevail on her claim that Sunipa was liable for the alleged harassment.
The Amended Complaint fails to state a cognizable claim that the isolated hugging incident was severe or pervasive or that Sunipa was liable for the same. Clark has had two opportunities to state a facially plausible claim for sexual harassment and has failed to do so. Therefore, the Court dismisses Clark’s sexual harassment claim with prejudice.
B. Retaliation
To establish a claim of retaliation under Title VII, Clark must show: (1) that she engaged in protected activity; (2) that her employer took an adverse employment action against her; and (3) that a causal connection existed between the protected activity and the adverse employment action. Tasciyan, 2011 WL 5119465, at *8 (citing Davis v. Dimensions Health Corp., 639 F. Supp.2d 610, 616–17 (D. Md. 2009)). “An employee may satisfy the first element by showing that she opposed a practice that Title VII prohibits.” Id. (citing Davis, 639 F. Supp.2d at 617). “One court has defined opposition as ‘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.’” Id. (quoting Davis, 639 F. Supp.2d at 617). “For such activity to constitute opposition, the plaintiff must have a reasonable and good faith belief that the conduct that she opposes constitutes unlawful discrimination under Title VII.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001)). “Opposition almost always arises when an employee communicates to her employer her reasonable belief that the employer has engaged in discrimination.” Id. (citing Crawford v. Metro. Gov’t of Nash. and Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009)).
In this case, the Amended Complaint states a cognizable claim for retaliation. Clark alleges that Bernard “groped her butt and squeezed it and lifted her off the floor.” Doc. 19 at 1. Although this allegation may inadequately state a facially plausible claim of sexual harassment, it sufficiently supports the inference that Clark had a reasonable belief that the incident constituted sexual harassment. See Tasciyan, 2011 WL 5119465, at *9 n. 3 (“Whether a person plausibly has a reasonable belief that her employer has discriminated against her is a separate inquiry from whether a person has stated a plausible claim for relief for sex discrimination.”). Clark further alleges that she complained to her manager Vincent and “wrote two letters to the corporate office explaining her complaints.” Doc. 19 at 1. These allegations, if true, make it plausible that Tasciyan communicated to her employer her reasonable belief that the employer engaged in discrimination. Additionally, Clark asserts that a manager named Melvin told her that she was terminated in part because she violated company policy by hugging Bernard. Therefore, even though the Complaint does not specify the dates on which Clark communicated her concerns to the employer, Clark adequately alleges that Sunipa fired her because she complained about the hugging incident. Cf., e.g., Tasciyan, 2011 WL 5119465, at *9 (explaining that temporal proximity between the opposition and termination is not the sole consideration when determining whether a plaintiff has adequately alleged a causal connection between the protected activity and the adverse employment action); Westmoreland v. Prince George’s County, Md., Civil Action No. 09-CV-2453 AW, 2010 WL 3369169, at *9–12 (D. Md. Aug. 23, 2010) (same). For these reasons, the Amended Complaint states a facially plausible claim for retaliation.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Sunipa’s Second Motion to Dismiss (Doc 20). Consequently:
• The Court DISMISSES Clark’s claim for sexual harassment under Title VII with prejudice;
• The Court DENIES Supina’s Second Motion to Dismiss in relation to Clark’s claim for retaliation.
The Court will issue a Scheduling Order.