Bailey v. Virginia Department of Alcoholic Beverage Control, No. 2:2018cv00392 - Document 7 (E.D. Va. 2019)

Court Description: OPINION AND ORDER granting 3 Motion to Dismiss for Failure to State a Claim. The Court PROVIDES Plaintiff with leave to amend the Complaint to cure all defects within 15 days after the entry of this Order. Signed by Chief District Judge Mark S. Davis on 1/7/19. (bpet, )

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Bailey v. Virginia Department of Alcoholic Beverage Control Doc. 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division JEANETTE L. BAILEY, Plaintiff, Civil No. 2:18cv392 V. VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Defendant. OPINION AND ORDER This filed by Control matter is Defendant C'ABC" before Virginia Court Defendant's pursuant ECF No. 3. Motion on a Department of or ''Defendant"), Civil Procedure 12(b)(6). below. the to Dismiss Motion to Alcoholic to Federal Dismiss Beverage Rule of For the reasons stated 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^ Bailey is a resident of Chesapeake, Virginia. ECF No. Virginia. 1. Defendant Id. SI 2. is an agency Defendant Compl. SI 1, of the Commonwealth of oversees the distribution of ^ The facts recited here come from the Complaint and are assumed true only to decide the motion to dismiss. The facts stated here are not factual findings for any purpose other than consideration of the pending motion. See Erickson V. ParduS/ 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint."). Dockets.Justia.com 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. During (^"Robert") Id. SI 7. Plaintiff's touched several times. employment, Plaintiff Id. SI 9. in a a co-worker sexually named Robert suggestive manner In May 2017, Robert touched Plaintiff on her lower back and ran his fingers up Plaintiff's back. SI 10. Plaintiff verbally objected. Id. Id. In June 2017, Robert grabbed Plaintiff by her shoulders and rubbed against her. SI 12. Plaintiff again verbally objected. Id. Id. Plaintiff complained after both incidents to Melissa Parker {'"Parker"). Id. SISI 10, 12. Parker was the store manager and had supervisory, hiring and firing power over Plaintiff. 8. Id. SI Parker disregarded Plaintiff's complaint regarding the May 2017 incident, stating "oh, that's just Bob." Id. SI 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. SI 13. Further, Plaintiff alleges that throughout her employment, managers and staff made inappropriate sexual comments, sexual innuendos, body and areas. uncomfortable, showed Id. and off tattoos located SI 14. Plaintiff These in actions complained to normally-clothed made Parker. Plaintiff 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. SI 15. On July 15, 2017, Robert^ came up behind Plaintiff, leaned over and around her, and dropped a Plaintiff was working. When pen on the register where Plaintiff complained that Robert was violating her personal space, he stated "I'm trying not to touch you." Id. SI 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. When Plaintiff Id. SI 18. arrived, she found feces spread carpets approaching the register as well as a feces and Incident"). The tissue paper next to only at other 9:15 employees a.m., merchandise in Robert also was the bag filled with register (^Vuly 20 Id. SI 20. present were Robert and an assistant manager. began the on the back and or responsible his areas closing - The Complaint refers to a "Mr. Parker." Plaintiff Id. SI 19. duties storage for when were of the arrived Robert's shift to the handle store. store the the Id. night Id. SI 17 ("On or about July 15, 2017, Mr. Parker came up behind Plaintiff. . . ."). The Court presumes this was in error, confusing Parker (a woman) and Robert, and was intended to refer to Robert as indicated by the remainder of the paragraph. before. Id. SI 21. The assistant manager had been scheduled to start work at 9:00 a.m. Id. SI 19. assistant manager about the feces. Later that day, Parker bottle of liquor approximately one that month Plaintiff complained to the Id. SI 22. demanded that Plaintiff pay for a Plaintiff prior. overcharged Id. SI 23. to a customer Parker made this demand even though the bottle was still in the store's inventory and the customer Plaintiff refused had to been refunded pay for the for the bottle, overcharge. expressed to Id. Parker that she felt she was being harassed and retaliated against and resigned her employment that afternoon. Id. SI 24. On May 9, 2018, Plaintiff filed a one-count Complaint in the Circuit Court of the City of Norfolk. ECF No. 1, SI 1. ABC unlawfully Notice of Removal, The sole count of the Complaint alleges that retaliated against Plaintiff in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. {"Title VII"). Compl. SISI 25-30. On July 11, 2018, Defendant filed a demurrer in the state court proceeding. 1. Demurrer, Ex. B of Notice of Removal, ECF No. On July 20, 2018, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441 et seq. 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 discharge. sufficient facts to demonstrate Def.'s Mem., ECF No. 4 at 1. Response on August 10, 2018. Reply on August 16, 2018. ECF No. 5. constructive Plaintiff filed her Defendant filed its 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). a complaint need not be detailed, the "[f]actual Although allegations must be enough to raise a right to relief above the speculative level." Id. at 555; see Ashcroft v. Iqbal, 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 Cty., 684 F.3d 462, 467 Volunteer Fire (4th 2012) Cir. Dep't v. (citation Montgomery 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 unreasonable conclusions, or arguments." inferences, E. Shore Mkts., Inc. V. Assocs. Ltd. P^ship, 213 F.3d 175, 180 {4th Cir. 2000); see Iqbal, 556 "Threadbare supported U.S. at recitals by mere 678 of (citing the Twombly, elements conclusory of 550 a statements, U.S. cause do at of not 555). action, suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). survive a motion to dismiss under Rule 12(b)(6), "a To complaint must include 'more than an unadorned, the-defendant-unlawfullyharmed-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).^ 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 3 In its response, ABC attaches five exhibits: (1) the EEOC charge ("Exhibit 1"); (2) ("Exhibit document a document titled 2"); (3) internal titled "Personnel "Employee Written Counseling Documentation" email correspondence ("Exhibit 3"); (4) a Action Notice" (Exhibit 4); and (5) additional emails about Bailey's transfer request ("Exhibit 5"). A motion to dismiss under Rule 12(b)(6) is generally limited to a review of the allegations in the complaint itself. Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). However, courts may consider documents that are explicitly incorporated into the complaint by reference, Tellabs, Inc. v. Maker Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and those attached to the complaint as exhibits. Fed. R. Civ. P. 10(c). Courts may also consider a document that was not expressly incorporated or attached to the complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004); Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999). A document is "^integral to the complaint'" "Vhere the complaint relies heavily upon its terms and effect[.]'" Goines, 822 F.3d at 159 (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). Courts may look at whether the complaint quotes heavily from the document; limited quotation or reference to the documents are insufficient to incorporate those documents. Goines, 822 F.3d at 159 (citing Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). The parties agree that Exhibit 1, the EEOC charge, may be considered. Resp., ECF No. 5 at 5 n.3. Defendant argues that the Court may consider Exhibits 2-4 as they are a matter of public record, and Exhibits 2-5 are integral to the Complaint. Def.'s Reply, ECF No. 6 at 2-3 n.l. ABC does not authenticate these documents (and Plaintiff disputes the authenticity of Exhibits 3-5, Pl.'s Resp., ECF No. 5 at 5) or explain how email communications among ABC employees, for instance, are a matter of Pl.'s public record. The Complaint does not quote from or even reference Exhibits 2-5. That the documents are about the same incidents as the Complaint is not sufficient to make them integral. As such, the Court only considers Exhibit 1 for the purposes of this motion; but in any event, consideration of the exhibits would not affect the determination of the instant motion. 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). claim, an protected employee activity; In order to succeed in must (2) show the that ""(1) employer she acted a retaliation engaged adversely in a 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 See Def.'s whether Reply, Plaintiff ECF No. 6 engaged at 3 in (''ABC protected never 'protected activity,' prong of the analysis[.]"). can fall explained, into two categories. "protected activities As the fall categories: participation or opposition. Fourth into activity. contested the Such activity Circuit two has distinct 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." Lauqhlin, 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 occurring." [s]he reasonably believed had occurred or was 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 workplace. practices Bailey complaints to Parker on alleges the that basis she of made gender multiple in the informal 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. 22. Id. 5 Further, Bailey alleges what she subjectively believed to be harassment or a hostile work environment. Id. SI 26. have to found it is objectively reasonable believe Courts 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 co- workers Here, he heard Bailey about was experienced an the unlawful sexual employment harassment. practice). Therefore, Bailey has alleged that she engaged in a protected activity.^ B. Adverse Employnien-b Action The parties largely contest whether Bailey has adequately pled the employment second element: action. discriminatory act whether An which she adverse has suffered employment adversely an action affects the adverse ''is terms, conditions, or benefits of the plaintiff's employment." V. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 a (4th James Cir. 2004) (internal quotations omitted). Two years after the Fourth Circuit's James opinion, the Supreme Court shed more light on how one determines whether an act has adversely affected terms, conditions or benefits of a plaintiff's employment. The Supreme Court stated in Burlington Northern that an adverse employment ^ Courts may draw "the inference of discrimination [in] sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity." English v. Pohanka of Chantilly, Inc., 190 F. Supp. 2d 833, 841 (E.D. Va. 2002). Although the Court concludes that Bailey opposed discrimination on the basis of gender, it cannot conclude that Bailey opposed discrimination on the basis of her Baptist religion. Nothing in the Complaint suggests the inappropriate contact, comments, or July 20 Incident was on the basis of religion. To the extent that Plaintiff's claims are based on engaging in protected activity opposing discrimination on the basis of religion, those claims are dismissed. 10 action must be the type that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington v. Northern (2006) (internal action is & Sante Fe quotations likely to objective reasonable Ry. White, omitted). dissuade a 548 Whether worker is worker perspective. U.S. an 53, 68 employer's examined Burlington from an Northern, 548 U.S. at 68. The Complaint alleges that Bailey suffered an adverse employment action as ABC engaged in "harassing and retaliating against [Bailey] due to her engagement in protected activity, or allowing such discharging activity." The her and because retaliation, of her and constructively engagement in protected Compl. H 29. parties instances satisfy harassment of the in their harassment adverse and briefing identify retaliation, employment action each four of element: specific which 1) could denial of Bailey's transfer request, 2) the demand by Parker for Plaintiff to pay for a bottle of liquor overcharged to a customer ("Demand for Payment"), discharge. 3) the July 20 Incident, and 4) constructive Each will be addressed in turn. 1. Denial of Bailey's Transfer Request In its motion, ABC argues that the denial of Bailey's request to transfer to another store location cannot constitute a materially adverse employment 11 action because a) regional management did not have any knowledge of her complaints, b) the request was unrelated to the alleged harassment, c) Parker gave Plaintiff a positive recommendation in connection with the transfer request, and d) the denial of her transfer request did not result in any material change to her employment. Def's. Mem., ECF No. 4 at 6-7. Plaintiff in response states that she does not allege that the denial of her employment action. transfer request constituted Pl.'s Resp., ECF No. 5 at 8. it is not necessary to consider whether an adverse Accordingly, Defendant's arguments have merit. 2. Demand for Payment Bailey does allege that both the Demand for Payment and the July 20 Incident employment action. may each serve as an independent adverse Plaintiff states: [m]ost ^treasonable workers," particularly in an indoor retail setting, would likely be dissuaded from engaging in protected activity when faced with feces smeared and bagged at their workstation (with the likely knowledge of a supervisor in the person of the assistant manager present in the unopened Store) along with baseless demands for payment from their supervisor. Pl.'s Resp., ECF No. 5 at 10. The Demand for Payment is not an adverse employment action. As explained, an adverse employment action must adversely affect the terms, conditions, or benefits 12 of the plaintiff's employment. considered A an monetary adverse plaintiff's compensation. penalty, payment or fine action if it employment could be reduces a See, e.g., Fordyce v. Prince George's Cty. Maryland, 43 F. Supp. 3d 537, 549 {D. Md. 2014) (holding that it was an adverse employment action automatically deducted from where a penalty was plaintiff's paycheck). Here, however, Parker only made a request for payment from Plaintiff; it is not alleged that Bailey did or was forced to pay the penalty or that there was any adverse action for failing to pay the penalty. Thus, there is no actual reduction in compensation. The Demand for Payment is more akin then to a reprimand. As discussed reprimand at also length must in either Hinton have v. a Virginia direct Union adverse Univ., a employment effect or exacerbate future discipline in a way that plausibly can be expected to create a future adverse employment effect in order serve as the adverse employment action element of a Title VII discrimination claim. 185 F. Supp. 3d 807, 820-21 (E.D. Va. 2016). Again, the Demand for Payment did not have an actual adverse effect; Bailey did not pay it and resigned shortly after the demand was made. The Complaint is also devoid of any allegation of future discipline that would have occurred if she 13 did not pay, for instance, that Bailey would have been forced to do so at the risk of losing her job. Plaintiff forth in argues that Burlington the Northern Supreme does Court's not standard require retaliatory actions to affect the terms and conditions of employment. Resp., Hinton EOF No. 5 at {which Burlington 10. However, post-date Northern does as Burlington not cases like Northern) replace the set Pl.'s Fordyce and demonstrate, "'adverse effect on terms and conditions" test with a "dissuade a reasonable worker" standard, Therefore, but merely the explicates request for further payment does on the standard. not constitute an adverse employment action. 3. July 20 Incident Plaintiff's attempt to use the July adverse employment action also fails. that ""[m]ost retail "reasonable setting, would workers,' likely be 20 Incident as an Again, Plaintiff argues particularly dissuaded from in an indoor engaging in protected activity when faced with feces smeared and bagged at their workstation (with the likely knowledge of a supervisor in the person Store)[.]" of the assistant manager present in the unopened Def.'s Resp., EOF No. 5 at 10. For there to be a retaliatory adverse employment action, the employer must be the one that acts. 14 The Complaint does not contain any allegation (nor does Plaintiff appear to argue) that the assistant manager was directly responsible for the feces. To the extent that Plaintiff alleges that ABC's failure to address the July amounted to an fails. Despite 20 Incident adverse what (through employment Plaintiff the action, states in assistant manager) that argument also her response, the Complaint is devoid of any allegation that the assistant manager knew of the feces prior to Plaintiff beginning her shift. The Complaint only alleges that when Plaintiff arrived at work at 9:30 a.m., she discovered the feces; the assistant manager began working at 9:00 a.m.; and that Robert began working a.m., and also closed the store the night before. 21. 9:15 Compl. SISI 18- Whatever implications these allegations may suggest, they fail to survive Iqbal and Twombly scrutiny; mere implications are insufficient to impute and at in turn, establish knowledge to the assistant manager a deliberate failure to act as a retaliatory adverse employment action by Defendant. Further, the Complaint is devoid of any allegation that the assistant manager about the feces. such a nothing allegations to act after Plaintiff's complaint The Complaint only alleges that Bailey made complaint about failed to the what about the assistant happened July manager, thereafter. 20 adverse employment action. 15 Incident do Compl. 5 22, Therefore, not make out but the an 4. Constructive Discharge Constructive discharge may serve as the adverse employment action in to such a Title claims VII retaliation claim. Courts as ''retaliatory constructive have referred discharge." See, e.g., Shetty v. Hampton Univ., No. 4:12CV158, 2014 WL 280448, at * 17 (E.D. Va. 2014). To establish constructive discharge, a plaintiff must be able to show that her former employer "deliberately ma[de] [her] working conditions intolerable, and thereby force[d] [her] to quit." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert, denied, 475 claim of constructive must prove the U.S. 1082 (1986). discharge intolerability Therefore, a has two elements; a of working deliberateness of the employer's action. plaintiff conditions and the Bristow, 770 F.2d at 1255. a. Intolerabili-ty The "intolerability" of work conditions is evaluated in terms of whether a reasonable person would find them so and thus be forced to resign. Bristow, 770 F.2d at 1255. "Because the claim of constructive discharge is so open to abuse by those who leave employment of their own accord, this Circuit has insisted that it be carefully cabined." F.2d 100, 114 assignments, (4th a Cir. feeling 1989). of Paroline v. Unisys Corp., 879 "[D]issatisfaction being 16 unfairly with criticized, work or difficult or intolerable as unpleasant to working compel a conditions reasonable are person not to so resign." Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (citing Carter v. Ball, Defendant, without reasonable employee 33 citing any would Plaintiff's situation. F.3d 450, 459 relevant have felt (4th Cir. case, argues compelled to 1994)). that no resign in Def.'s Reply, ECF No. 6 at 5. Courts have found that a reasonable person could find it objectively intolerable where an employer causes an employee to have significant interaction with a co-worker who has allegedly sexually CIV.A. harassed her. See, e.g., Lopez v. BMA DKC 13-2406, 2013 WL 6844361, at *12 (D. Corp., Md. Dec. No. 24, 2013). Plaintiff has alleged that Parker disregarded first complaint regarding Robert in May 2017. Plaintiff's After Plaintiff's second complaint in June 2017, Parker told Plaintiff that Robert would not touch her again. However, another incident occurred on July 15, 2017 where Robert leaned over her to drop a pen. To the extent Plaintiff has alleged that Parker's inaction or lack of sufficient action caused her to continue to work with Robert, Plaintiff has made allegations 17 sufficient to fulfill the intolerability element required to show constructive discharge amounting to an adverse employment action.^ b. Deliberateness More problematic and largely unaddressed by the parties, is Bailey's failure to allege deliberateness. ^'Deliberateness were intended by exists the plaintiff to quit." only if the actions complained employer as an effort to force of the Taylor v. Virginia Union Univ., 193 F.3d 219, 237 (4th Cir. 1999) (en banc), cert, denied, 528 U.S. 1189 (2000). The deliberateness of an employer's proven by actual or circumstantial evidence. action may be Carter, 33 F.3d at 459. The Complaint discriminated alleges against generally Plaintiff with that regard to "Defendant the terms and conditions of her employment . . . due to her engagement in protected of activities" and "Defendant's acts malice, spite. 5 As Plaintiff has at this stage of the case established intolerability of her work conditions based on the alleged sexual harassment alone, it is not necessary to consider Defendant's arguments that a reasonable person would not find the Demand for Payment and the July 20 Incident so intolerable that she would be forced to resign. The Court notes, however, that Defendant's Exhibit 3 demonstrates the contradiction in ABC's argument. In those emails, Les Morris, ABC's Assistant Director of Retail Operations, expresses confusion over why the store is demanding payment from Bailey. The store suffered no monetary loss; the customer was overcharged or charged twice for the same bottle of liquor, he was later refunded, and the bottle remained in the store. Defendant argues that since the demand was converted to written counseling or a formal reprimand, it was not intolerable. However, the Demand for Payment was baseless. Defendant also presents no support for its farfetched argument that a reasonable person would not find having her workplace covered in feces intolerable. 18 and ill will which evince a conscious disregard for the rights of Plaintiff retaliating activity, include, against or constructively but her allowing due such discharging protected activity." are not to limited her harassing engagement harassment her to: because and of in protected retaliation, her and engagement and in Compl. SISl 26, 29.® At best, the Complaint alleges in a conclusory manner that Defendant ignored harassed such protected claim. Plaintiff harassment activity. That or and retaliated against her, retaliation, because of goes to the Title VII or the retaliation Nothing in the Complaint indicates that Defendant took such actions against Plaintiff with the intention of forcing her to quit, as is required in order to make out the adverse employment action of retaliatory constructive discharge. The Fourth Circuit has stated that intent may be inferred from circumstantial shown by evidence evidence. that an For instance, employee's ^'[i]ntent resignation may was be the reasonably foreseeable consequence of the employer's conduct" or that a response by employer that is ^treasonably calculated to end the intolerable environment" was required. Amirmokri v. ® To the extent Plaintiff is alleging that Robert's actions led to her constructive discharge including any implication that Robert was responsible for the July 20 Incident, Robert was not Plaintiff's employer and "wielded no supervisory or managerial power over [Plaintiff]." Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004). As such, cannot serve as the basis for a constructive discharge claim. 19 his actions Baltimore Cir. Gas 1995); 1997) and Electric Co., Johnson (same). v. K-Mart However, circumstances can be a 60 F.3d Corp., 131 demonstrating higher 1126, 1132-1133 (4th 134 Cir. F.3d (4th deliberateness bar for through plaintiffs to satisfy. See, e.g.. Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 473 (4th Cir. 2002) (finding the circumstantial evidence was insufficient to establish deliberateness). Here, the Complaint does not permit the Court to find that deliberateness, alleged. on all the circumstances, has been For instance, it is not evident how the employee's resignation demand based for was the payment reasonably here. In foreseeable fact, it consequence appears the of a employer expected Bailey to continue her employment and thus pay for the bottle. The Court also cannot conclude that resignation was the reasonably foreseeable consequence of any failure to respond to the alleged continuing sexual harassment. After Plaintiff's June 2011 complaint, Parker spoke with Robert and told Plaintiff Robert would occurred reported. on not July Nor touch 15, is Plaintiff which again. Plaintiff resignation the has Another not reasonably incident alleged she foreseeable consequence of any failure to respond to the July 20 Incident given the timing; Plaintiff made a complaint on the day of the incident and resigned that afternoon. 20 In neither instance, did Plaintiff give Defendant the opportunity to correct the problem. For all these reasons, the Court concludes Plaintiff has failed to allege that the Defendant employer acted in a manner calculated to force Plaintiff to quit. C. Causation ^^An employee need not prove causation itself at the prima facie case stage: rather, a close temporal relationship between the protected activity and the adverse action is sufficient to show a causal nexus." Brockman v. Snow, 217 F. App'x 201, 207 (4th Cir. 2007) (citing Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006)). closeness requisite onerous in causal burden Yashenko, time 446 ^far from connection, of F.3d making at a 551 "While evidence as to the conclusively it certainly prima facie (quoting establishes satisfies the the less case of causality.'" Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)). The parties do not appear to dispute whether the Complaint satisfies this element. activity when she Here, Plaintiff engaged complained to Parker in that protected Robert inappropriately touched her in May and June 2017, and complained about the manager. July The 20 Incident purported that adverse same date employment to the actions assistant followed thereafter; the Demand for Payment, the July 20 Incident, and Bailey's resignation due to retaliatory constructive discharge 21 all took period place between employment on July the 20. At protected actions. most, activity Courts have there and found was a two-month purported that such adverse a close temporal connection would be sufficient to fulfill the causation element. King v. Rumsfeld, 328 (finding that a activity and adverse establish causal F.3d two-and-a-half month employment connection); 145, 151 (4th gap action Clark Cir. 2003) between was County protected sufficient School Dist. to v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (noting that some cases ^'accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case"). D. Remaining Argumen-bs ABC spends a significant portion of its briefs discussing possible Title VII discrimination and hostile work environment claims. However, Plaintiff has indicated that the only includes a single count—Title VII retaliation. is not implied necessary to Title discrimination VII consider the claims. 22 and arguments hostile to work Complaint As such, it dismiss any environment 1. Relationship of Retaliation Claim to Title VII and Hostile Work Environment Claims To the extent that Defendant is arguing that Plaintiff does not have a Title VII discrimination claim or a hostile work environment claim and thus did not engage in protected activity, that argument has no merit. does not need to As already discussed, a plaintiff demonstrate that there was an actual act of discrimination to have engaged in protected activity supporting a retaliation claim. she subjectively reasonable for Plaintiff merely needs to demonstrate that believed, her discriminatory act. to and that it was objectively believe, that she was opposing a Peters v. Jenney, 327 F.Sd 307, 320 (4th Cir. 2003). Similarly, Plaintiff does not need to demonstrate that there was an actual hostile work environment to have engaged in protected activity supporting a retaliation claim for opposing such an alleged hostile work environment. She merely needs to demonstrate that she subjectively and reasonably believed that a hostile work Fontainebleau environment Corp., 786 existed. F.3d 264, 284 Boyer-Liberto (4th Cir. 2015). v. Like the hostile work environment standard itself, courts look to the pervasiveness and severity of the alleged discrimination to determine whether it is objectively reasonable to believe that she is opposing a hostile work environment. 23 Breeden, 532 U.S. at 270-71. '''A single offensive utterance . . . generally will not create a hostile environment without significant repetition or an escalation in the harassment's severity. . . . But an isolated incident that is physically threatening or humiliating will be closer—even actionable on its if not own equal-to because it the is type of ^extremely conduct serious.'" Boyer-Liberto, 786 F.3d at 284 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). ^The more severe the harassment, the less pervasive it needs to be, and vice versa.'" Boyer-Liberto, 786 F.3d at 284 (quoting Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579 (D.C. Cir. 2013)). Here, physical it is sexual alleged that harassment in there May are and two June instances 2017, of another instance of harassment without physical contact on July 15, the July 20 Incident, the Demand for Payment, and sexual comments on a regular basis. The severity of some of these incidents (e.g. the inappropriate physical contact) and the pervasiveness (all occurring within a span of three months) is sufficient to meet the reasonably objective requirement at the pleading stage. See, e.g., Stewart v. MTR Gaming Grp., Inc., 581 F. App'x 245, 247 (4th Cir. 2014) (hostile work environment claim involving inappropriate sexual comments and three incidents of touching). 24 2. Pleading Standard Defendant further contends that a constructive discharge claim requires a plaintiff to ^'set out a plausible showing that (1) she was subjected ^sufficiently severe or [her] employment, and to a hostile pervasive to work alter (2) [she] must show the environment conditions of the abusive working environment became so intolerable that her resignation qualified as a fitting response.'" Pennsylvania (2004)). plead the State Def.'s Reply, ECF No. 6 at 4 (quoting Police v. Suders, 542 U.S. 129, 133-134 In essence, ABC argues that Plaintiff has failed to ""something more" than hostile work environment necessary to state a plausible constructive discharge claim. It is true that ""[t]he law is well-settled that a claim of constructive discharge requires proof of working conditions that are even harsher than those required to state a claim of hostile work environment." Tinsley v. Astrue, No. 3:lO-cv-01184, 2012 WL 5377881, at *8 (S.D.W.Va. Aug. 15, 2012) (collecting cases), report and recommendation Oct. 31, 2012). plead the (and thus, work adopted, 2012 WL 5381678 (S.D.W.Va. As already discussed. Plaintiff has adequately intolerability required has also met the environment). That for constructive discharge requisite standard for a Plaintiff did not hostile separately plead hostile work environment as an independent cause of action is of no moment. 25 E. Leave to Amend "The Fourth Circuit has held that Mi]f the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, test his claim he ought to be afforded an opportunity to on the merits.'" Berkeley-Dorchester Cntys. Econ. Dev. Corp. v. U.S. Dep't of Health & Human Servs., 395 F. Supp. 2d 317, 325 (D.S.C. 2005) {quoting Pittston Co. v. United States, 199 F.3d 694, 705 (4th Cir. 1999)). Here, the Court finds that facts alleged by Plaintiff may be a proper subject of relief. her Therefore, the Complaint, See Court grants Plaintiff leave to amend Edwards v. Murphy-Brown, L.L.C., 760 F. Supp. 2d 607, 633 (E.D. Va. 2011) {granting sua sponte leave to amend complaint). IV. CONCLUSION For the reasons stated above. Defendant's Motion to Dismiss is GRANTED, ECF No. 3. The Court PROVIDES Plaintiff with leave to amend the Complaint to cure all defects within fifteen (15) days after the entry of this Order. The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of record. IT IS SO ORDERED /s/ Mark S. Davis CHIEF UNITED STATES DISTRICT JUDGE Norfolk, Virginia January *7 / 2019 26

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