Rivera v. Prince William County School Board et al, No. 1:2009cv00341 - Document 17 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION re: 6 Motion to Dismiss. Signed by District Judge Gerald Bruce Lee on 7/22/09. (tfitz, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION Lisa Rivera, Plaintiff, Case v. No. 1:O9CV341(GBL) Prince William CountySchool Board, Defendant. MEMORANDUM OPINION THIS MATTER is before the Court on Defendant Prince William County School Board's ("PWCSB") concerns Plaintiff Ms. Motion to Dismiss. This case Lisa Rivera's claims that she was sexually harassed by a co-worker and that PWCSB retaliated against her for reporting the harassment by transferring her to a different school. There are four issue is whether Ms. claim is time (4) issues before the Court. Rivera's Title VII hostile work environment barred where "[f]rom September 2005 the Complaint alleges to February 2007," but Ms. her Equal Employment Opportunity Commission Discrimination on December 14, The second issue is 2007, more harassment Rivera filed {"EEOC") Charge of than 300 days later. whether a few isolated incidents of sexual harassment over an seventeen-month period are or pervasive to state a claim there sufficiently severe for hostile work environment. third issue is whether PWCSB where school board officials as Ms. The first is a basis for imposing liability on took corrective action as Rivera complained of harassment. The The fourth issue is soon whether Ms. Rivera sufficiently alleges an adverse employment action where Ms. Rivera discussed a transfer to a different school with school officials but later disagreed with the school selected for her transfer. The Court grants Defendant PWCSB's Motion to Dismiss for four (4) reasons. First, the Court holds that Plaintiff's discrimination claim must be dismissed because she filed her charge of discrimination more than 300 days after the date of the alleged unlawful conduct. Second, the Court holds that Plaintiff's complaints about her co-worker's boorish sporadic behavior spanning a seventeen-month period is insufficient to state a claim under Title VII. Third, the Court holds that the allegations fail to show a basis for imposing liability on PWCSB because it took immediate corrective action by investigating the complaint upon learning of the alleged harassment. Fourth, the Court holds that the allegations are insufficient to show adverse employment action because Ms. Rivera requested a transfer and the fact that she later disagreed with the school that was chosen does not constitute a significant detrimental effect on employment. below. The Court discusses each issue in greater detail I. Plaintiff Ms. BACKGROUND Lisa Rivera is an elementary school teacher with Defendant Prince William County School Board. Ms. Rivera brought hostile work environment and retaliation claims against PWCSB under Title VII of the Civil Rights Act of 1964 VII"), 42 U.S.C. § 2000e, et seq., ("Title alleging that she was subjected to a hostile work environment when she was the object of unwelcome sexual advances from a co-worker and that she faced retaliation when subsequently transferred to another school. In 2002, PWCSB hired Ms. Rivera as a fifth grade teacher at Potomac View Elementary School. Mr. Robert Gunning was also a fifth grade teacher at Potomac View. Although responsible for different sections of the fifth grade, often had to switch classrooms, Ms. Rivera and Mr. attend meetings, Gunning and otherwise work in close proximity to each other. According to the Complaint, 2007, Mr. from September 2005 to February Gunning made unwelcome sexual advances on Ms. various ways. (Compl. M 13-17.) Ms. Rivera in Rivera alleges that Mr. Gunning made comments about her sexual relationship with her husband. She also claims that Mr. Gunning asked her if she would wear lingerie for him or her husband and offered to buy Ms. Rivera a red teddy as a Christmas gift. Mr. Ms. Rivera alleges that Gunning made sexual comments during conversations with her and frequently used sexual innuendo referring to male genitalia. Ms. Rivera claims that Mr. Gunning sent her at least one email containing sexual comments and/or sexual innuendo. further claims that, on one occasion, Mr. Ms. Rivera Gunning smacked and grabbed her buttocks against her wishes. On February 23, Ms. Melvina Michie, (Compl. H 20.) 2007, Ms. Ms. Porter and Ms. Rivera's Porter Michie stated that Ms. Susan Porter, On February 27, for documentation from the but Ms. and on the same day- Gunning to discuss Ms. 2007, Ms. Rivera asked Ms. February 23 meeting with Mr. Porter stated that information to Ms. {Compl. she would report the Michie met with Mr. complaints. Gunning, to the assistant principal at Potomac View. incident to the principal, Ms. Rivera reported the harassment she could not provide any Rivera under PWCSB rules and regulations. 11 21-22.) In March 2007, to other PWC Public Ms. Rivera reported her harassment complaint Schools officials, including a member of human resources department and the area superintendent schools. {Compl. On March 12, that Ms. refusing for 11 23-24.) 2007, Ms. Porter confronted Ms. Rivera, angry Rivera had contacted the area superintendent without Ms Porter's knowledge or consent. March 22, the 2007, Ms. 1 28.) Days later on Porter verbally reprimanded Ms. to personally meet allegations. (Compl. On March 27, with Mr. 2007, Ms. Gunning Rivera for to discuss the Rivera requested leave to meet with the human complaint, resources investigator regarding her and the next day Ms. properly requesting On March 29, leave. 2007, Porter reprimanded her for not (Compl. Ms. 29.) Ms. 28.) Rivera met transferring to another school. resources that Ms. H Ms. Rivera wished to with Ms. Porter to discuss Porter notified human transfer schools. Porter also told Human Resources that Ms. (Compl. % Rivera remained uncooperative and unwilling to discuss her allegations with Mr. Gunning. That same day, Ms. transferred to Dumfries Rivera was notified that she would be Elementary School third grade teaching position. that she did not wish to go Gunning should be transferred Ms. 2 007, Ms. closed. Rivera f 30.) 13, Ms. 2007, to a Rivera stated to Dumfries and argued that Mr. transferred instead. Rivera was Ms. (Compl. on April to Dumfries. told that the On April (Compl. ^1 13, 34.) 2007, PWCSB On May 11, investigation of her case was Rivera never received the results of the investigation. Ms. Rivera filed an EEOC complaint and received her Right Sue Notice on December 31, this Court against Mr. Count I 2008. Infliction of (Assault and Battery). Rivera filed a Complaint in Gunning and PWCSB alleging four counts: (Sexual Harassment); (Intentional Ms. Count II to (Retaliation); Emotional Distress); PWCSB now moves Count III and Count IV for dismissal of all claims.1 II. A Federal Rule granted unless (2007) Civil Bell Ashcroft v. Atlantic Corp. at the elements of Iqbal, 555. S. Ct. at 129 S. Ct. A complaint 1949 In order to face." plausible Id.; v. is 1937, also (internal forth Twombly, Originally, Mr. Gunning. U.S. the at 550 see Fed. R. 1949 U.S. Civ. (2009); insufficient citations in the 544, P. 561 12(b)(6). not do." Twombly, if it 550 U.S. at relies upon Iqbal, motion to dismiss a 570. that is plausible on A claim is factual content inference that alleged." 550 omitted). 12(b)(6) "when the plaintiff pleads 555 Twombly, "a claim for relief for the misconduct Twombly, "supported by further factual enhancement." the court to draw the reasonable liable is motion should be a cause of action will survive a Rule complaint must set its 12 (b)(6) labels and conclusions or a formulaic "naked assertions devoid of 129 Procedure (internal citations omitted); recitation of REVIEW facts consistent with the allegations "A pleading that offers U.S. OF an adequately stated claim showing any set of complaint." of STANDARD Iqbal, 129 facially that allows the defendant is S. Ct. at 1949; 556. Complaint On May 1, alleged claims 2009, Ms. against both PWCSB and Rivera filed a Stipulation of Dismissal, dismissing Count III (Intentional Infliction of Emotional Distress) and Count IV (Assault and Battery) of the Complaint, result, the only and dismissing Mr. Gunning as a defendant. As a Counts I and II are the only remaining counts and PWCSB remaining Defendant. In considering a Rule construe the complaint plaintiff, 12(b)(6) in the 1134 (4th Cir. by reference, Tellabs, Ct. 2509 Court must favorable to the and take the facts Inc. v. Matkari, 7 F.3d In addition to the complaint, the "documents incorporated into the complaint Inc. (2007). legal effect of the Havel, the and matters of which a court may take judicial notice." v. Mylan Lab., 1993) . court may also examine 2499, light most read the complaint as a whole, asserted therein as true. 1130, motion, v. Makor Issues "Conclusory allegations facts alleged" 43 F.3d 918, & Rights, 921 Ltd., 127 S. regarding the need not be accepted. (4th Cir. 1995). Labram Because the central purpose of the complaint is to provide the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests," some the plaintiff's legal allegations must be supported by factual basis sufficient fair response. Conley v. to allow the defendant Gibson, III. A. Hostile Work Environment The Court grants - 355 U.S. 41, 47 to prepare a (1957). ANALYSIS Time Bar PWCSB's Motion to Dismiss Count I of the Complaint as time barred because, contained in the Complaint, Ms. based on the allegations Rivera failed to file her charge of discrimination within 300 days of the conduct complained of. Title VII requires a complainant to file an EEOC administrative charge within either 180 or 300 days after the alleged unlawful employment practice occurred, U.S.C. § 2000e-5(e)(1). jurisdiction, depending on the jurisdiction. Because Virginia is a a complainant is required to 42 "deferral" file an EEOC administrative charge within 3 00 days of the alleged unlawful conduct. Cir. See Edelman v. Lynchburg Coll., 300 F.3d 400, 404 (4th 2002). Here, Ms. Rivera's Complaint states that the harassment occurred "[f]rom September 2005 to February 2007." 13.) The plain meaning of harassment took place the word up until "to" (Compl. H indicates that the February 2007. However, Ms. Rivera did not file her formal EEOC charge of discrimination until December 14, 2007, harassment ended. As over 300 days such, Count I is after the alleged time barred as currently pled. Ms. Rivera argues that sexual harassment is a continuing violation in the context of a hostile work environment claim, therefore her claim is the 300-day period. acts complained of her EEOC charge. 2007. In order timely so long as any act occurred within Accepting this argument as finds no allegations and in the Complaint true, the Court indicating that any of the took place within 3 00 days of when she filed Ms. for violation doctrine, Rivera filed her charge her charge to be on December 14, timely under the continuing some act would have needed to have occurred on or after February 16, before the December 14 Complaint, however, because February 16 filing date. is 300 days By the language of the all of the alleged conduct occurred prior to February 2007 because February 2007, 2007, the period of harassment or up until February 2007. took place Consequently, "to" the claim is untimely even under the continuing violation doctrine. Ms. Rivera also argues that Count I is timely because filed an EEOC Intake Questionnaire on May 25, the date that she filed the formal charge, 2007, she well before and that her Intake Questionnaire constitutes a charge under the Code of Federal Regulations and Edelman. whether the The Court need not address Intake Questionnaire because facts regarding the before the Court. Ms. constitutes the issue of an EEOC charge filing of the Questionnaire are not Rivera's Opposition Brief mentions that she filed an Intake Questionnaire with the EEOC but, the four corners of the Complaint, of an Intake Questionnaire. Ms. there is 2d 909, Supp. 809, 813 917 n.9 (E.D. (E.D. Va. use his opposition brief complaint); (D. Md. Zachair, 1997) Ltd. 1998) 2004); Katz Davis v. v. Odin, Cole, 332 999 F. F. (refusing to allow plaintiff to to refute facts contained in his v. ("[plaintiff] its complaint and cannot, Va. no mention whatsoever Rivera cannot use her Opposition to PWCSB's Motion to amend her Complaint. Supp. examining Driggs, 965 F. Supp. 741, is bound by allegations 748 n.4 contained in through the use of motion briefs, amend the complaint.")- because B. the hostile Hostile The Court grants claim because, allege harassment; the 2) harassment was conditions of there Bass - claim is untimely as Sufficiency of even if In order not time Count the is v. Cir.), cert, "1) barred, the DuPont for de denied, facie omitted). Here, the based on her gender severe or pervasive imposing Nemours 540 of case of . 3) a . .; to alter and create an abusive atmosphere; U.S. hostile work environment must allege each element claim is she experienced unwelcome sufficiently employment pled. the hostile work to plead a prima harassment was some basis E.I. that [her] I Claim harassment based on a hostile work environment, plaintiff must the Court dismisses PWCSB's motion to dismiss sufficiently pled. sexual the work environment Work Environment environment not Consequently, & liability on the Co., 940 324 F.3d (2003). "set claim." Id. 761, 765 (4th alleging sufficient (internal third and fourth elements and 4) employer." A plaintiff forth facts the are to citations insufficiently pled. 1. Severe or pervasive The Court holds that the Complaint are insufficient harassment "severe so conditions of or harassment isolated incidents to show that pervasive" that Ms. it alleged Rivera altered in the faced the her employment and created an abusive atmosphere. 10 In determining whether a work environment evaluates Forklift the totality of Sys., court may conduct; Inc., inquire 510 into the hostile, circumstances. U.S. "the is 17, 22-23 it is See Harris (1993). frequency of the its severity; whether humiliating, or a mere offensive utterance; a court v. In doing so, discriminatory physically threatening or and whether it unreasonably interferes with an employees work performance." at 23. In addition to actual may be hostile ridicule, First if it is rife with Rivera's 202 allegations to constitute severe 118 the F.3d 106, 98-1914, 2000) 2000 frequency of 110 U.S. App. "intimidate, (4th Cir. is to show severe or harassment. To severe or pervasive, conduct. 1997). LEXIS steady barrage Isolated or infrequent period of many months e.g., (4th Cir. Hartsell 1997) v. of Smith v. 2000). 2933, Schwapp See v. Town also Lacy v. at *10 courts opprobrious (4th Cir. instances of racial of Avon, AMTRAK, Feb. (citing Schwapp and quoting parenthetically that must be a See, that insufficient or pervasive the (2d Cir. are a work environment status of women." 242 Id. the conduct alleged was not frequent determine whether harassment evaluate comments F.3d 234, pervasive harassment because enough advances, and maliciously demean the Union Nat'l Bank, Ms. sexual a No. 28, "there comments."). harassment that occur over a is not sufficiently severe or pervasive. Duplex Prods., (dismissing Inc., 123 sexual harassment 11 F.3d 766, 768-69 claim because six verbal incidents over a period of approximately three months was insufficiently severe and pervasive); Inc., 129 F.3d 1355, 1365-66 Sprague v. (10th cir. 1997) (finding sexually-oriented statements over sixteen months show hostile work environment, offender occurred as he put the plaintiff's dress even though one his and said, Thorn Americas, insufficient comment arm around plaintiff, "well, you got five to by the looked down to get it when you can.") . Here, Ms. Rivera identified only four specific alleged harassment within a that Mr. (Compl. Gunning: % 16); 2) 1) sent seventeen-month period. an email asked if Ms. 1 14); 3) (Compl. referring to male genitalia (Compl. the H 15). 2000 U.S. t 17); App. with Ms. Rivera isolated conduct to be actionable 2933, LEXIS gift Rivera's buttocks in conversations necessary a Christmas and used sexual innuendo type of sporadic, "steady barrage" See Lacy, at This comments Rivera would wear a red teddy for smacked and grabbed Ms. against her wishes She alleges containing sexual him or her husband and offered to buy her one as {Compl. instances of at *10; is not under Title VII. Hartsell, 123 F.3d 768-69. Furthermore, the conduct the quality or severity required to state a Rivera, is not of hostile work environment actionable under Title alleged, claim. VII. Not although offensive all sexual See Hartsell, 12 123 harassment F.3d at to Ms. is 772-773 (explaining that Title VII makes no attempt to workplace of vulgarity, but instead seeks alters the conditions of employment) omitted). Although the acts Ms. offensive, but they are not conditions of employment. conduct alleged is claim for hostile 2. (internal citations Rivera complains of may be such, the Court holds liability on the soon as she for sexual the employer "knew or imposed on PWCSB Rivera's allegations reported them. harassment Sunbelt Rentals, Inc., by the victim's (citation omitted); co-workers, should have known about 521 Howard v. F.3d 306, Winter, of An employer cannot be harassment and failed to take effective action to v. third element facts pled are liability should be because PWCSB immediately addressed Ms. unless the PWCSB Rivera had sufficiently pled the insufficient to show that held liable that severe or pervasive enough to state a of her hostile work environment claim, harassment as to alter her work environment. Imposing Even if Ms. not to remedy conduct that so offensive as As "purge the 319 446 the stop (4th Cir. F.3d 559, it." EEOC 2008) 565 (4th Cir. 2006) . The its Court finds earlier cases, (E.D. Va. Apr. 17, Plaintiff's Saran v. 2006). employed by the U.S. Army, present Harvey, In Saran, No. the alleged that 13 case similar to one of 05-727, 2006 plaintiff, WL a 1049157 secretary two co-workers made several comments that plaintiff younger secretary." Id. at should be replaced with "a *2. Plaintiff admitted that she told no one about the discriminatory comments, supervisor, while they were being made. including her Id. Later, informed her supervisor about her co-workers' plaintiff's when she comments, the supervisor promised that he would inform his staff that harassment would not be tolerated and that all personnel would be fully compliant. Id. at *11. No harassing statements were made after her supervisor addressed the issue. Id. This Court granted summary judgment against the plaintiff on her hostile work environment claim because she failed to establish that 2) 1) the defendant had prior knowledge of the harassment; the employer failed to respond once notified.2 The Ms. facts of this Rivera alleges February 2007." case that she (Compl. are similar to those was harassed from H 13.) However, Ms. or Id. in Saran. Here, "September 2005 to Rivera did not report the alleged harassment to a school administrator until February 23, ended. 2007, (Compl. after H 20.) the period of harassment had already Like the plaintiff in Saran, Ms. Rivera failed to report the conduct while it was actually occurring. such, nothing in the harassment while it allegations was shows that As Defendant knew of the occurring. 2In Saran, the defendant moved the Court to dismiss the complaint for failure to exhaust administrative remedies or, alternatively, for summary judgment. Id. at *1. 14 Furthermore, Complaint as show that upon learning of in Saran, Defendant the school's principal allegations took harassment. harassment on February 23, the the immediate Ms. 2007 Rivera (Compl. 1 in the present corrective reported the 20), and that same day and assistant principal met with Mr. Gunning to discuss the allegations. {Compl. 2007, to discuss Ms. Rivera met with Ms. another school, (Compl. notified that School allegations place. As % that such, 30). Porter ^ 29), she would be (Compl. On March 29, transferring to Rivera was transferred to Dumfries Elementary Here, accepting took ^ 21.} and that same day Ms. as in Saran, the harassment clear that Defendant action there are no continued after Plaintiff's immediate the transfer allegations as steps true, to address Ms. took it is Rivera's concerns. Ms. Rivera argues Complaint, because one of Defendant the the (Pl.'s Opp'n 8.) above, Ms. Complaint. at 813; Zachair, Ms. Defendant Rivera the principal incidents This 332 F. Ltd., also alleged overheard Ms. in the fails 965 argues F. in 917 Supp. at n.9; 748 conclusory did not actually know of 15 the February 2007 2005-2006 because, 2d at the Rivera discussing school year. as mentioned use her Opposition Brief Supp. in harassment before early argument Rivera cannot Katz, although not knew of assistant alleged that, to amend her Davis, 999 F. Supp. n.4. fashion harassment, that, it even if should have known because the conduct occurred in a school Rivera cited no legal authority as The Court support setting. Ms. for this argument. finds nothing particular about a school setting to suggest that an employer should be aware of an employee's alleged but unreported harassment of finds the Complaint impose fails a co-worker. to show that As such, the Court it would be proper to liability on Defendant. Consequently, barred and, the Court dismisses Count even if not time barred, I because it is time it fails to state a claim for hostile work environment. C. Retaliation The - Adverse Employment Action Court dismisses allegations fail to action against Ms. under Title VII, Count II of the Complaint because show that Defendant Rivera. To state a claim for retaliation 2) the action against the employee; employer and 3) of N. Am., Inc., Adverse employment is, 126 be the employer's actions might have worker from making or Burlington Northern took Fe Ry. 16 adverse Co. employment connection existed 242 action. Munday v. (4th Cir. 1997). "materially adverse," that "dissuaded a reasonable supporting a charge & Santa the employee engaged adverse F.3d 239, action must 1) a causal between the protected activity and the Waste Mgmt. took adverse employment a plaintiff must allege: in protected activity; the v. of discrimination." White, 548 U.S. 53, 68 (2006) (citations omitted). less appealing job," however, employment action. Va. 2005). Mere reassignment or transfer "to a Peary v. Instead, does not constitute an adverse Goss, 365 F. Supp. 2d 713, 722 (E.D. "reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect." Goldin, 256 178 F.3d 253, (4th Cir. 1999). "[A]bsent any decrease in compensation, responsibility, Boone v. job title, or opportunity for promotion, new position commensurate with one's level of reassignment to a salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position." Id. at 256-57; LEXIS 173 05 Dawson v. (E.D. Va. Feb. Rumsfeld, 2, 2006) No. 05-1270, 2006 U.S. (granting defendant's motion to dismiss because elementary school teacher failed to allege that proposed transfer to another class would have detrimental effect" Here, "significant on her). the allegations fail to show that Ms. Rivera's transfer constituted an adverse employment action. was a fifth grade teacher at Potomac View, PWCSB transferred her to a third grade Dumfries Rivera (Compl. H Dist. 34). However, "had a meeting with [Ms.] Plaintiff to another school." (Compl. Ms. Rivera 1 10), and teaching position at according to the Complaint, Porter to discuss (Compl. 17 1 29.) Ms. Ms. transferring Rivera opposed the transfer to Dumfries, (Compl. to handpick the school that H 31), but she was not entitled she would be transferred to. A transfer to Dumfries as opposed to a school and grade level that Ms. Rivera preferred does not mean that the transfer had a significant detrimental effect as contemplated in Boone, 253, because Ms. 178 F.3d Rivera does not allege that the transfer required her to take a reduction in pay or that it otherwise reduced her future job opportunities. Consequently, the Court dismisses Count II of the Complaint because Plaintiff fails to sufficiently plead an adverse employment action. IV. Conclusion The Court grants Defendant's Motion to Dismiss. The Court dismisses the hostile work environment claim because it is time barred as pled. Alternatively, the Court dismisses the hostile work environment claim because the allegations severe or pervasive harassment and because basis for imposing liability on PWCSB. retaliation claim because they fail to show to show a The Court dismisses the the allegations 18 fail fail to show that Ms. Rivera suffered an adverse employment action. reasons, it For the foregoing is hereby ORDERED that Defendant PWCSB's Motion to Dismiss is GRANTED. The Clerk is directed to forward a copy of this Order to counsel. Entered this 6*Z*>4 day of July, 2009. Alexandria, 07/ L^ Virginia Gerald Bruce Lee JeL United States District Judge /09 19
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