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Wilkes v. Argueta

United States District Court, M.D. North Carolina

March 31, 2017

KIM MORGAN WILKES, Plaintiff,
v.
FRANCISCO ARGUETA, a/k/a FRANCISCO ROTUI, a/k/a FRANCISCO ROMERO, ALDO DIPUORTO, MARIA DIPUORTO, and THE ALDO DIPUORTO and MARIA DIPUORTO PARTNERSHIP, Defendants.

          MEMORANDUM OPINION AND ORDER

          LORETTA C. BIGGS, District Judge.

         Plaintiff initiated this action on March 23, 2016, in state court, alleging retaliation in violation of 42 U.S.C. § 2000e-2 et seq. (“Title VII”), as well as various state law claims. (ECF No. 7.) Defendants timely removed the action to this Court. (ECF No. 1.) Before the Court is Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6). (ECF No. 15.) For the reasons set forth below, Defendants' motion will be granted in part and denied in part.

         I. BACKGROUND

         Defendants Aldo DiPuorto, Maria DiPuorto, and the Aldo and Maria DiPuorto Partnership (“Defendant Owners”) own and operate restaurants under the name “Elizabeth's Pizza, ” one of which is located in Thomasville, North Carolina. (ECF No. 7 ¶ 6.) Plaintiff was hired by Defendants Owners in 2002 as a Head Waitress/Waitress Manager, responsible for the supervision, training, and scheduling of waitresses at the restaurant. (Id. ¶ 7.) Plaintiff was also responsible for hiring waitresses and calculating their payroll. (Id. ¶¶ 7, 14, 22.) Approximately six months after hiring Plaintiff, Defendant Owners hired Francisco Argueta (“Argueta”) as the Kitchen Manager. (Id. ¶ 8.) Argueta also “served as the general manager of the restaurant whenever Defendant Aldo DiPuorto and/or his son, Gino DiPuorto, [1] were not present, which was most of the time.” (Id.)

         During her employment, Plaintiff, as Waitress Manager, received numerous complaints from waitresses at the restaurant “that Argueta engaged in sexually harassing conduct toward them and others.” (Id. ¶ 11.) Plaintiff notified Defendant Owners about these complaints “many times over the years.” (Id. ¶ 13.) Plaintiff also notified Defendant Owners about various other incidents that she witnessed, “either in person or on video recorded in the restaurant, ” in which Argueta “engaged in inappropriate physical activity with different waitresses.” (Id. ¶¶ 12, 13.) Defendant Owners ignored Plaintiff's complaints and “took no action to discipline Defendant Argueta or restrain him from continuing to engage in such activity.” (Id.)

         On or about July 15, 2013, Plaintiff hired Jeanette Kennedy (“Kennedy”) as a waitress. (Id. ¶ 14.) Immediately upon being hired, Kennedy began to complain to Plaintiff about sexual comments made to her by Argueta. (Id.) Kennedy “also complained that Argueta made hand gestures like he was masturbating in front of her.” (Id.) Plaintiff “saw video footage of [this] event” when she later viewed the restaurant's surveillance video.[2] (Id.) Approximately one week after hiring Kennedy, on or about July 22, 2013, Plaintiff received another complaint from Kennedy about Argueta's conduct. (Id. ¶ 15.) Plaintiff confronted Argueta, with Kennedy present, and told him that his conduct “was inappropriate and that he needed to stop.” (Id.) In response, Argueta told both Kennedy and Plaintiff that they “needed to get laid so that [they] would be in better moods.” (Id.) (alteration in original).

         Less than one week later, on or about July 28, 2013, Argueta “slapped Kennedy on the buttocks which hurt Kennedy and left a mark.” (Id. ¶ 17.) Kennedy reported this incident to Plaintiff who, in turn, reported the incident to Defendant Owners. (Id.) Also on July 28, 2013, Argueta accused Kennedy of stealing a tip left for another waitress, “and made other derogatory comments about Kennedy, urging Plaintiff to fire [Kennedy].” (Id. ¶ 18.)

         A few days later, on or about August 1, 2013, Kennedy quit her job at the restaurant and filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) against Defendant Owners. (Id. ¶ 20.) Kennedy also “initiated a criminal complaint against Defendant Argueta” in Davidson County.[3] (Id.) On May 28, 2014, Plaintiff provided an executed Affidavit in Kennedy's EEOC charge investigation in which Plaintiff discussed “the fact that numerous waitresses at the restaurant had complained about Argueta's sexually harassing conduct and that Plaintiff had informed and complained to Defendant Owners regarding Argueta's conduct.” (Id. ¶ 24.) On May 30, 2014, Defendants were notified about Plaintiff's submission to the EEOC. (Id.) Around the same time, “Defendants also learned that Plaintiff had cooperated with law enforcement in their investigation of the criminal matter initiated by Kennedy and that [Plaintiff] had agreed to serve as a witness and give testimony for the prosecution in that matter.” (Id. ¶ 25.) Shortly thereafter, “Plaintiff overheard Defendant Aldo DiPuorto and Gino DiPuorto . . . saying that they had to get rid of Plaintiff, ” and they began “acting angry toward her.” (Id. ¶ 26.) Plaintiff was also threatened and repeatedly pressured by Aldo DiPuorto to “get Kennedy to drop her criminal charges.” (Id.; see Id . ¶ 21.)

         On or about June 20, 2014, [4] Plaintiff was told by Aldo DiPuorto that he was traveling to Italy and, in his absence, she “was not to ‘see anything' or ‘say anything.'” (Id. ¶ 27.) Following Aldo DiPuorto's departure, Plaintiff confronted Argueta about another complaint she received from a waitress concerning “Argueta's sexually harassing conduct.” (Id. ¶ 28.) Three days later, on June 23, 2014, Plaintiff was terminated, via telephone, by Argueta who told Plaintiff that “he had . . . spoken to Defendant Owners about her and that [she] was being terminated for raising issues and complaining about his sexually harassing conduct.” (Id. ¶¶ 29, 30.)

         On July 8, 2014, Plaintiff filed a Charge of Discrimination with the EEOC based on retaliation in violation of Title VII. (Id. ¶ 43.) The EEOC issued a determination, on September 30, 2015, finding reasonable cause to believe that Defendants had violated Title VII. (Id. ¶ 43; ECF No. 17 ¶ 43.) The EEOC also issued a Notice of Right to Sue on December 31, 2015. (ECF No. 7 ¶ 43; ECF No. 17 ¶ 43.) Plaintiff then filed the instant lawsuit seeking compensatory and punitive damages, as well as injunctive relief. (ECF No. 7 at 10.) Defendants filed an Answer to Plaintiff's Complaint, (ECF No. 17), and subsequently moved to dismiss this action for failure to state a claim, (ECF No. 15).[5]

         II. STANDARD OF REVIEW

         A motion to dismiss made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure “challenges the legal sufficiency of a complaint, ” including whether it meets the pleading standard of Rule 8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), thereby “giv[ing] 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 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         A complaint may fail to state a claim upon which relief can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable claim, see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012); or second, by failing to allege sufficient facts to support a legal cause of action, see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). Dismissal under Rule 12(b)(6) is only appropriate “when the complaint ‘lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.'” Capital Associated Indus., Inc. v. Cooper, 129 F.Supp.3d 281, 300 (M.D. N.C. 2015) (quoting Brown v. Target, Inc., No. ELH-14-00950, 2015 WL 2452617, at *9 (D. Md. May 20, 2015)).

         On a Rule 12(b)(6) motion, the Court must accept all factual allegations in the complaint as true, Iqbal, 556 U.S. at 678, and construe all factual allegations in the light most favorable to the plaintiff, Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). “Although the Supreme Court has . . . made clear that the factual allegations in a complaint must make entitlement to relief plausible and not merely possible, . . . ‘[w]hat Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations.'” McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (internal citations omitted) (alteration in original) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         III. DISCUSSION

         A. Retaliation in violation of Title VII (Claim 3)[6]

         Under Title VII of the Civil Rights Act of 1964, it is unlawful 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). Before a plaintiff files suit under Title VII, she must exhaust her administrative remedies which requires that she, first, file a charge with the EEOC. Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). A plaintiff's failure to exhaust administrative remedies deprives the court of subject matter jurisdiction over the claim. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). The parties here do not contest that Plaintiff has exhausted her administrative remedies with respect to her Title VII retaliation claim. (See ECF No. 7 ¶ 43; ECF No. 17 ¶ 43.) The Court therefore has subject matter jurisdiction over Plaintiff's Title VII retaliation claim.[7]

         In order to establish a prima facie case of retaliation under Title VII, Plaintiff must allege: “(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Md., 566 U.S. 30 (2012). “[W]hile a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, . . . [Plaintiff's] factual allegations must be enough to raise a right to relief above the speculative level.” Id. (citations and internal quotations omitted).

         With respect to the first element of a retaliation claim, Title VII specifically prohibits an employer from retaliating against an employee because she has opposed an unlawful employment practice, “or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Thus, “in the context of a retaliation claim, a ‘protected activity' may fall into two categories, opposition and participation.” EEOC v. Navy Fed'l Credit Union, 424 F.3d 397, 406 (4th Cir. 2005).

         Opposition activity is protected, not only when it is undertaken to oppose employment actions that are actually unlawful under Title VII, but also when it responds to “employment actions an employee reasonably believes to be unlawful.” Id. at 406 (emphasis added). Employees are “guaranteed the right to complain to their superiors about suspected violations of Title VII.” Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 543-44 (4th Cir. 2003). In addition, participation activities (including making a charge, testifying, assisting, or participating in any manner in a Title VII investigation, proceeding, or hearing, see 42 U.S.C. § 2000e-3(a)), “are vigorously protected to ensure employees' continuing access to the EEOC and the enforcement process, ” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). Accordingly, “the scope of protection for activity falling under the participation clause [of Title VII] is broader than for activity falling under the opposition clause.” Id. at 259 n.4.

         In this case, Plaintiff alleges that she participated in the EEOC's investigation of Kennedy's charge. Specifically, Plaintiff alleges that:

On May 28, 2014, Plaintiff executed an Affidavit to provide relevant, truthful information regarding Kennedy's EEOC Charge, including the fact that numerous waitresses at the restaurant had complained about Argueta's sexually harassing conduct and that Plaintiff had informed and complained to the Defendant Owners regarding Argueta's conduct. On May 30, 2014, Defendants were notified that Plaintiff had submitted the Affidavit. (ECF No. 7 ¶ 24.)

         The Court finds that this allegation of Plaintiff's participation in the EEOC investigation of Kennedy's charge constitutes a protected activity under Title VII which satisfies the first element of Plaintiff's retaliation claim.

         As to the second element of Plaintiff's retaliation claim, Defendants do not contest that Plaintiff was terminated by Defendant Owners on June 23, 2014. (See ECF No. 17 ¶ 30.) Nor do Defendants contest that Plaintiff's termination constitutes an adverse employment action. See King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003) (finding that plaintiff's “termination indisputably constituted adverse employment action”); see also Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004) (“Adverse employment actions include any retaliatory act or harassment if that act or harassment results in an adverse effect on the terms, conditions, or benefits of employment.”). Thus, the second element of Plaintiff's retaliation claim has been satisfied.

         Plaintiff may satisfy the third element of a Title VII retaliation claim by sufficiently alleging that there is close temporal proximity between the adverse employment action and the protected activity. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (discussing that close temporal proximity may be “strongly suggestive of retaliatory motive and thus indirect proof of causation”). Although the Fourth Circuit has not adopted “a bright temporal line, ” the court has held that a lapse of three or four months “between the protected activities and discharge was ‘too long to establish a causal connection by temporal proximity alone.'” Per ...


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